Protection of Freedoms Bill

Lord Hanson of Flint Excerpts

Monday 19th March 2012 Commons Chamber

[James Brokenshire]

If the right hon. Gentleman refers to the Bill, he will see that the time period contemplated is two years, in order to allow proper consideration of all the relevant 1,300 to 1,400 powers of entry. This is not something that will simply lie in abeyance. The review of all powers must be completed within two years of Royal Assent, and we have said that we will report back to Parliament every six months to provide an update on progress, so there will be a steady updating process. I hope that that gives him comfort. I also highlight to him the Home Office gateway, which provides an ongoing check and balance in relation to new powers of entry, as well as the ability to review existing powers of entry that may be triggered as a consequence.

[Mr David Hanson (Delyn) (Lab)]

What ultimate sanctions are in place in the event that the two-year review is not completed by any Department?

[James Brokenshire]

The review is a specific statutory requirement, and we are focused on ensuring that it is undertaken with all due expedition. The right hon. Gentleman will be aware of the requirements of the ministerial code and other requirements on Departments and Ministers to abide by the law. In addition, the ongoing six-monthly review that I mentioned will enable the House to maintain pressure on Departments to ensure that the provision is being properly adhered to and followed through with the intent and spirit of the Bill.

I point out to the right hon. Member for Leicester East (Keith Vaz) that we have made significant progress through the Home Office gateway, which considers all applications by Departments for new powers of entry. To date, 19 applications to create or amend powers of entry have been considered, and we have added greater safeguards in every case. Every power of entry in respect of domestic dwellings that has been approved through the gateway process has included a requirement that entry is obtained either with the consent of the occupier or on the authority of a warrant. We have also taken the opportunity to scrap a number of powers.

I hope that that reassures right hon. and hon. Members that we are serious about ensuring that powers of entry are subject to appropriate safeguards and that we are committed to rolling back intrusive state powers and strengthening the privacy of home owners and businesses.

When taken together, the gateway process and the measures that I have outlined add up to a significant commitment to tackle what we have recognised to be a significant infringement of the rights of home owners. I have also made it clear that we cannot, in every case, demand that entry is effected only with the consent of the occupier or on the authority of a warrant. I put it to the House that our approach will ensure that the necessary safeguards are put in place to protect home owners, while providing greater legal certainty and ensuring that the police and others can act swiftly to protect the public. I therefore have no hesitation in inviting the House to disagree with the Lords amendments.

[Mr Hanson]

I am grateful for the opportunity to contribute to this short debate.

Lords amendments 16 and 17 were supported in another place by Lord Selsdon. I welcome the debate about powers of entry and look forward to the Minister’s response to the points that I will put to him. When both I and Lord West were Ministers in the Home Office, the then Prime Minister, the right hon. Member for Kirkcaldy and Cowdenbeath (Mr Brown), commissioned him to write a review of entry powers. The report that Lord West produced was overtaken by events with the general election, but I will refer to it with regard to the matters before the House.

The genesis of the Protection of Freedoms Bill lies in a document published in 2010 called “Modern Conservatism: Our Quality of Life Agenda”. I hope that the Minister will not think this too harsh, but I thought that, on balance, it was a rather tawdry document and I disagreed with almost every word of it. I do not say that very often or very lightly. The Lords amendments, which were passed with the support of the Opposition in another place, as the Minister said, would hold the Government to account for what they said they would do in that document. It stated that a Conservative Government, who I accept are upon us, would

“cut back the intrusive powers of entry into homes. Public bodies (other than the police and emergency services) will require a magistrates’ warrant, and approval for such a warrant will be restricted to tackling serious criminal offences or protecting public safety.”

This is an area of private grief between Government Back Benchers in another place and the Government. The Lords amendments would allow the Government to deliver on one of their major promises. That is something that the Government have failed to do on many occasions.

[Steve Baker (Wycombe) (Con)]

Will the right hon. Gentleman give the Government just a little leeway, after only two years, in untangling the giant pile of messy powers of entry that his Government left the coalition?

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[Mr Hanson]

The hon. Gentleman has walked directly into my fist. “Modern Conservatism: Our Quality of Life Agenda” stated:

“When he became Prime Minister, Gordon Brown pledged to introduce a new liberty test to curtail powers of entry…He commissioned Lord West to undertake a review of entry powers. A final report by Lord West was supposed to be published by spring 2009, but has been continually delayed and kicked into the long grass.”

Lord Henley discussed that very point in another place, and the Minister referred to it today.

Clause 42, “Duty to review certain existing powers of entry”, places on Ministers of the Crown a duty to review relevant powers of entry within a relevant period, which happens to be two years. I may not be a great mathematician, but as I recall, we were criticised for kicking the matter into the long grass in 2009, yet now we cannot expect a final report until 2013 if the Bill receives Royal Assent. I ask the Minister and the hon. Gentleman whether that qualifies as kicking the matter into the long grass. I fear that it does. My noble Friend Lord West and my right hon. Friend the Member for Kirkcaldy and Cowdenbeath were criticised for kicking the matter into the long grass by delaying the review of powers of entry. However, clause 42 seems to provide for the very delay for which the Minister criticised us when he was the Opposition spokesman.

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[Steve Baker]

I am most grateful to the right hon. Gentleman for his attempt, which we hear so often from the Opposition, to rewrite history and demonstrate Labour’s commitment to liberty. There are Government Members who would have been delighted if measures on powers of entry had been introduced by now, but I put it to him that the Government’s caution merely reflects a mature and sensible approach rather than the more gung-ho tone that some might take towards liberty.

[Mr Hanson]

It was mature and sensible reflection when we were accused of kicking the matter into the long grass in 2009-10, when I was a Minister in the Home Office. I am pleased that the hon. Gentleman has planted his flag in the ground on this issue, because he is holding true to the Conservative manifesto commitment. I am genuinely surprised that there are not more Government Back Benchers wanting to hold the Government to account for why they are not fulfilling their manifesto commitment. Perhaps he will do that in due course.

My colleagues in another place supported the amendments, so that we could have this debate today and get the Minister’s comments on record. Concerns were raised, for example, about the term “trading standards officers”, which is not a recognised term. I would welcome him addressing those concerns.

As my right hon. Friend the Member for Leicester East (Keith Vaz) suggested, we have some concerns about the review provided for under clause 42. It places a duty on Secretaries of State to review the powers of entry for which they are responsible and report back to Parliament within two years of Royal Assent, following the necessary detailed analysis. As I said, we were accused of kicking the matter into the long grass, but the Government must consider 2013 shorter grass than 2011, which is when we would have had the review.

That aside, the purpose of the review under clause 42 will be to have each individual power of entry examined, to determine whether it is still required or whether it should be repealed, have safeguards added to it or be consolidated with similar powers to reduce the overall number. As we are already two years into the Government’s time in office and face the prospect of another two years before we hear back from the review, I do not believe I am far amiss in saying to the Minister and the hon. Member for Wycombe that the Government are potentially ducking the issue and leading the review into longer grass than we planned.

I would like some updates from the Minister on the points we have made. How long does he expect each Secretary of State to undertake the review? Does he expect the reviews from each Department to be completed before the end of the two-year period? Will he report back on the reviews en masse, when all Departments have completed them, or will he do so when individual Departments have completed reviews on their areas of responsibility?

Does the Minister expect to report back earlier than in two years’ time? As I have mentioned, what are the sanctions on Secretaries of State who do not meet the target? Will he report back on that? How does he expect Secretaries of State who have not met the target to report to the House? Can he guarantee that Parliament will have an opportunity to debate the review in full once it is published? Will he give some indication of how many legislative proposals on power of entry he expects to be reviewed and in due course repealed? According to the Conservative quality of life manifesto, there are 1,242 state powers of entry. Will the Minister indicate whether he has set targets for the outcome of the review? How many of those will be in place at the end of the review? Will he indicate how many of those powers of entry will in due course be on the bonfire that he promised in the manifesto?

The Conservative Government promised to cut back intrusive power of entry into homes. I am interested as to whether the Minister and his team will ultimately achieve that objective. We need clarity about the review. The Opposition will not support the amendments because we do not feel they are valuable, and I look forward to hearing the Minister’s response in due course.

[Jacob Rees-Mogg (North East Somerset) (Con)]

The Minister’s opening remarks gave a degree of reassurance on the Government’s position, but I feel that the starting point should be that the forces of law and order and of the state should not as a matter of routine have the right to enter people’s houses. One of the most important freedoms that we enjoy as British subjects is that if somebody comes into our house without our invitation, it must be because some important crime has been committed, or there is some emergency or another immediate reason. The problem with the Minister’s reassurance is that there is always a suspicion that Governments do what is convenient rather than what is right, and that the bureaucrat always feels that it is easier to enter somebody’s home or office than to go through a complex procedure—to get a warrant or to obtain a justice of the peace’s authorisation—to go into somebody’s property.

I remember listening to a brilliant speech by the present Attorney-General when the Conservative party was in opposition and when pulling back on such warrants was our formal policy. As the Minister has done today, my right hon. and learned Friend went through the vast numbers of powers that have built up—600 have been introduced in recent years and there are as many as 1,300 in total. How minor some of them are. If a council inspector believes that there is a flea infestation, he can enter somebody’s home to see whether fleas are hopping about. That was introduced in the 1930s, so it is not part of the recent accumulation of powers, but it reflects a century of belief in the big state and of allowing increasing powers to the state to take steps that are more convenient than necessary.

This House is always here to protect the rights and liberties of the individual against the over-mighty Executive. Although I believe the present Government are undoubtedly the greatest Government in the history of mankind, it is none the less in the nature of Governments to try to increase the powers they have, because it is always more convenient to do so. One can imagine the advice from officials to Ministers—“Minister, it will be easier and quicker and save money if we do this”—but that must be weighed by the House against the historic and ancient rights that we have enjoyed and that are so important to us.

We have enjoyed these freedoms to the great benefit of our nation and prosperity. The feeling of security that people have in their home—the feeling that they can go about their lawful business in their home without the forces of the state coming in to question what they are doing or how they are living—has allowed us to become one of the most prosperous countries in the world. Those ancient freedoms have underpinned all of that not just in recent years, but over many centuries. We have always been one of the freest countries in the world and one that has protected the property and rights of subjects against an over-mighty Crown more strongly than other nations have been willing to do.

Although I have received—I think—sufficient reassurance from the Minister to support the amendments, I hope that the Government will carry out the review with the greatest urgency. Many people would have been more sympathetic to the Government’s view if, instead of just a rejecting motion, they had tabled an amendment with a bit more detail on the time scale, or perhaps a requirement that if the review is not finished in two years, any power that has not been reviewed must fall or be the subject of a warrant or the agreement of the person whose property is to be invaded.

I will end my brief remarks by reminding the House of the words of Pitt the Elder—known as the Great Commoner, that proud upholder of liberties in the 18th century. What he said should ring true today for all subjects of Her Majesty:

“The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail, its roof may shake; the wind may blow through it; the storm may enter, the rain may enter—but the King of England cannot enter”.

That is a principle that we ought to uphold and fight for. The Government should push ahead as fast as possible to ensure that these 1,300 powers are cut right back purely to those that are essential in the fight to maintain law and order or to put out fires.

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[James Brokenshire]

I rise to respond briefly to a number of the points raised. Let me assure my hon. Friends the Members for North East Somerset (Jacob Rees-Mogg), for Ipswich (Ben Gummer) and for Wycombe (Steve Baker) of this Government’s commitment and resolve to roll back the arms of the state that may seek to intrude into private life.

The measures before the House this afternoon are important. They underpin our focus on ensuring that powers of entry are proportionate, appropriate and respect the right to be able to enjoy one’s home without undue interference. The House will also recognise, however, that there are certain circumstances in which such intervention might be appropriate—to protect health, to prevent harm or to ensure that criminals are legitimately brought to justice. That is why we are undertaking the review that I have outlined this afternoon.

I assure the right hon. Member for Leicester East (Keith Vaz) that I understand his desire to get on with this. We have said that we will report back to the House on a six-monthly basis, and I anticipate that that will involve a joint report on behalf of all the relevant parts of the Government Departments undertaking the review, to provide an update on the progress and the steps that are being taken. We intend the review to be Home Office-led and it will be undertaken in large measure by officials, but they will be responsible to Ministers, and I assure the House that Ministers will be driving the process forward, recognising the House’s strong feelings about the importance of liberty.

It was a bit rich of the right hon. Member for Delyn (Mr Hanson) to suggest that we were trying to kick this matter into the long grass and to defer or delay it. On the contrary, we are legislating through the Bill, we are taking action and we are setting out a clear process to roll back powers of entry, which grew enormously under the last Government. The fact that 600 new powers of entry were created during their period in office underlines the fact that due regard was not given to the implications of those measures. I am proud that this Government are introducing a clear mechanism to review the impact of powers of entry and the necessity of their remaining on the statute book or being made subject to further safeguards. The measures in the Bill will allow that to be done.

I very much welcome the support that has been expressed by right hon. and hon. Members on both sides of the House this afternoon. I know that the right hon. Member for Delyn will want to ask what target we have set, but I hope he has realised that we are not a Government who arbitrarily set targets. We will look at this matter in a measured, considered way and decide what is in the best interests of liberty and the protection of freedoms in relation to safety and security, as well as of the freedom from the intrusion of an overbearing state.

[Mr Hanson]

rose—

[James Brokenshire]

I will give way, having made a challenge to the shadow Policing Minister.

[Mr Hanson]

I sense that the Minister is about to finish his speech. Before he does so, will he try to answer the question that I put to him earlier? In the event of a Secretary of State not meeting the duty set out in clause 42, what sanctions would be available to address their failure to meet that target?

[James Brokenshire]

I think I have already answered the right hon. Gentleman’s questions fairly and squarely in terms of the statutory requirement on which I hope the House will legislate. I hope that that measure will go on to the statute book. The Bill represents a significant step forward—one that the previous Government failed to take during the 13 years in which they were creating 600 additional powers of entry. I note that he is seeking to push and challenge us on this, but I must point out that the Bill represents a significant step forward. Ministers will be bound by the provisions, and they will take the new responsibility extremely seriously.

I hope that the House is minded to disagree with the Lords in their amendments this afternoon. That in no way implies a lack of commitment, resolve or focus on the Government’s part to ensure that powers of entry are properly examined and, as appropriate, scaled back to ensure that they properly protect without intruding, and that they are not retained on the statute book if they are not necessary.

Lords amendment 16 disagreed to.

Lords amendments 17 and 18 disagreed to.

A New Clause

Stalking

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[James Brokenshire]

As the hon. Lady will be aware, the provisions relate to the consent of the parents. They say that the consent of one parent is required, but it is left open to the other parent to object, and such an objection would stand. If need be, in the light of the arguments that the right hon. Member for Delyn makes for his amendment, I will provide further clarification.

Finally, I turn to the motion to disagree with Lords amendment 28. The amendment is a response to an observation from the Delegated Powers and Regulatory Reform Committee that questioned the necessity of an affirmative procedure for an order revoking a temporary extension order. In the Government’s response to the Committee, we concluded that it was not necessary to subject a revocation order to parliamentary scrutiny, given that it would be neither appropriate nor meaningful. The Committee did not take issue with that conclusion. It would be perverse if Parliament were in the position of debating and voting on a revocation order when it had not had the opportunity to approve the original temporary extension order, given that the order had been revoked before it had been approved. Any such debate would be likely to be academic because a temporary extension order lasts for only three months, and there is therefore a strong possibility that an order would have expired before any debate had taken place. Furthermore, a revocation order will simply return the maximum period of detention to 14 days, the maximum period already approved by Parliament, which negates the need for parliamentary approval of a revocation order. That remains the Government’s view, and I hope that the House will not support the Opposition’s motion to disagree with the Lords amendment.

[Mr Hanson]

As the Minister has said, we are indeed traversing old ground that is familiar to me, to him and to his officials. The initial discussion on DNA retention had its genesis in the debates on what became the Crime and Security Act 2010, which was produced during what I shall have to call the dying days of the last Labour Government. At that time, the then Home Secretary, my right hon. Friend the Member for Kingston upon Hull West and Hessle (Alan Johnson), and I, the then Policing Minister, wrestled with the issues on DNA retention. We looked at them in great detail, and made an assessment of the judgments of the European Court of Human Rights on these matters.

We also considered how we could maximise the envelope that was available for the retention of DNA. That was a matter of judgment. We wished to ensure that we had the greatest possible ability under the legal requirements set down under those European Court judgments to maintain the retention of DNA so that we could use it to catch criminals who had committed crimes or who could potentially commit further crimes. We made the assessment—rightly or wrongly; we believe rightly—that there were between 20,000 and 23,000 individuals who might well have committed crimes during the six years. With the shorter period that the Minister is proposing in the Bill, such people will not now have to face that judgment. The police might not be able to use the DNA samples any more when the Bill comes into force, as the DNA profiles will no longer be in place. This is indeed old ground.

The 2010 Act was the subject of a difference of opinion between me and the then shadow Minister, and that difference has not changed in the subsequent two years. Happily in many ways, I was not party to the Bill’s initial consideration in Committee, as I was at that time shadowing Treasury Ministers. I returned in October, however, to find that the Government were intent on progressing the change in the DNA regime. I see my hon. Friend the Member for Tynemouth (Mr Campbell), who was a Home Office Minister at the time. Let me say that as a name for a Bill, the Protection of Freedoms Bill is one of the greatest misnomers ever in my near 20-year career in this House. It unpicks the impact of Labour’s 2010 Act. In so doing, I believe it puts at risk individuals in our communities who could have been helped and supported and could have been protected from becoming victims by the provisions of the 2010 Act.

Our amendment (a), to which the Minister has referred, is meant to provide a device to allow us to debate some of the serious offences that would be impacted by the Government’s proposed changes to the DNA regime. We have argued strongly—it is a matter of judgment—that the Crime and Security Act 2010 was the best way to meet our European obligations at the same time as trying to protect civil liberties and ensuring also that the British people would be free of murder, rape and crime. There are balances to be struck in ministerial life, which is always about balances. When I was in government with my fellow Ministers in the Home Office—the Department that the present Minister is now privileged to serve—we felt that under European law and paying respect to the protection of liberties, we should try to extend the window of opportunity to protect as many people as possible by ensuring that DNA samples were collected.

[Philip Davies (Shipley) (Con)]

Does the right hon. Gentleman agree that if someone’s DNA is held on a database, it does not impinge on their freedoms to go about their daily lawful business, unimpeded in anything they want to do? Does he further agree that people’s freedoms are enhanced by having as many murderers, rapists and other serious offenders brought to justice and put behind bars, rather than having them wandering the streets because their DNA is not on a database?

[Mr Hanson]

I am grateful to the hon. Gentleman for his support on this matter. He has been consistent in his support for the Opposition’s proposals and has joined us in Divisions. Deep down, he understands that the Conservative party’s legacy as the party of law and order is seriously being put at risk by measures that are soft on individuals who have the potential to commit rape, murder or other serious crimes, who could be prevented from committing those crimes if their DNA were on a database for a longer period. I believe that that presents a real risk not just to public, but to the reputation of the Conservative party.

[Dr Julian Huppert (Cambridge) (LD)]

I want to be clear about what the right hon. Gentleman is saying about this Lords amendment. Does he accept that the amendment would mean that somebody accused and arrested only once for a malicious sexual offence would have their DNA kept for ever—in clear contravention of the European Court’s ruling? Is he admitting that his amendment is deeply flawed and that he is using it merely as a debating point rather than planning to insist on a vote—in other words, that he does not believe in his own amendment?

[Mr Hanson]

The hon. Gentleman will know that through Lords amendments, we are seeking to find a mechanism to debate serious issues such as rape and other serious crimes. The Sexual Offences Act 2003 includes rape and a range of associated issues, which we want to debate. The amendment might not have been tabled perfectly; it was done at the last minute in order to find a way to discuss the key issues. We wanted the Government to hear again, before the Bill receives its Royal Assent, arguments from people such as the hon. Member for Shipley (Philip Davies) and some of my hon. Friends who have real and genuine concerns. We do not want the Government to proceed with allowing the DNA of some individuals to be destroyed earlier than it needs to be, as this will potentially put at risk individuals in the community at large.

[Mark Field (Cities of London and Westminster) (Con)]

I accept some of what the right hon. Gentleman says, but surely he must recognise that there are shades of grey in this debate. He says that we need to be protected from murderers and rapists, but many law-abiding citizens have concerns about being fitted up by the police or the possibility of the science and technology proving faulty—and who knows where DNA technology will be in 20 or 30 years’ time? Does he not recognise that there are shades of grey in this particular debate, and that painting it in the simplistic way he does—although it is good that we are having this debate—rather debases his argument?

[Mr Hanson]

Let me reassure the hon. Gentleman that I am not trying to turn this into a simplistic debate. As Home Office Ministers, my right hon. Friend the Member for Kingston upon Hull West and Hessle (Alan Johnson) and I wrestled with officials for many months about where to draw the line on this matter. We recognised that there were different places to draw it. What we tried to do in government was to draw the line at the furthest point we possibly could to ensure that we maximised the police’s ability to collect and examine DNA so that subsequent crimes could be solved by its use. Because rape and murder are not always one-off crimes but repeat offences, we wanted to prevent further victims downstream. We looked at that in the light of our European responsibilities, and we drew the line at six years.

To answer the hon. Member for Cambridge (Dr Huppert), I still wish to draw the line at six years today. I accept that the amendment may be technically flawed, but its purpose, given the limited opportunities available, was to put our concerns to the Minister, as I have explained. We want to stress that the impact of sexual offences and other serious crimes needs to be examined. What is the clear difference between the Minister and me? It is the fact that his proposals to restrict the use of DNA put at risk people’s lives and their ability to enjoy them freely without being subjected to sexual offences. I fear that the Minister and I will continue to disagree on those issues. Let me tell him that the gut instinct of many Conservative Members is to share the gut instincts of many Labour Members. What we are trying to do is at least to give the Minister an opportunity to look at these issues again.

[Jeremy Corbyn]

Is my right hon. Friend aware that many people are very concerned about the way in which DNA is collected and stored? Clearly, when someone has been reported, questioned and possibly arrested by the police, but then exonerated—with no conviction and in many cases no trial—surely there is no case for storing their DNA. This is what leads to a great sense of unease for many people and probably diminishes relations between the community and the police as a result. Is my right hon. Friend not concerned about that? I know that he had to make these judgments as a Minister.

[Mr Hanson]

We did have to make those judgments when we were in government, and our judgment was that having the envelope of six years was consistent with our European obligations, and also with the pattern of offending. If people had not reoffended within the six years, the likelihood of further offences diminished considerably. People tended to reoffend within a one-year to six-year period. I genuinely take my hon. Friend’s concerns about the retention of DNA impacting on people’s civil liberties. However, I support what the hon. Member for Shipley said, as being raped, murdered or subjected to serious crimes also has an impact on people’s civil liberties.

As a Minister I had to make a balanced judgment, and the judgment reached by me and by my colleagues was that six years was an appropriate limit. There is an honest disagreement between the present Minister and me about that.

The Government’s own research—research carried out by the Home Office in July 2010—found that 23,000 people every year whose DNA would be retained on the database as a result of our proposals, but that would not be as a result of the Government’s, would commit further offences. We are talking about 23,000 further offences. My amendment may be flawed—I do not have recourse to all the fine civil servants who are available to the Department—but my aim was to initiate a discussion about sexual offences, and to persuade the Minister to reflect on the issues once more before the Government’s proposals became law.

[Philip Davies]

Does the Minister know of any innocent person who has been negatively affected by the placing of his details on a DNA database? This is a question of balance. The Government’s main aim appears to be to ensure that the DNA of someone who has not committed a crime is not put on the database, but as far as I know that does such people no harm. Surely a greater danger is posed by the person whose DNA should be on the database but is not, and who then commits a crime that is not detected.

[Mr Hanson]

I hesitate to agree with the hon. Gentleman yet again, but I do agree with him. As far as I am aware, the fact that someone’s DNA is on the database under the 2010 Act is known only by the police—if they wish to examine it—and by the person concerned, and they can tell whoever they wish to tell, or alternatively tell no one. It is not a matter of public knowledge.

This is the nub of my amendment, flawed though it is. Of the 23,000 people I mentioned earlier, about 6,000 a year will go on to commit serious crimes, including rape and other sexual offences, murder and manslaughter. I simply ask—as I have on every occasion when I have had an opportunity to discuss the issue—why we should allow that to happen when we have the ability, potentially, to prevent it from happening.

[Mr Buckland]

Nonsense.

[Mr Hanson]

We have had a debate about this and there is an honest disagreement between the Minister and me, but the hon. Gentleman needs to recognise that the DNA database, as constituted under the 2010 Act, would prevent those 6,000 serious crimes from taking place. He may shake his head, but that is what he needs to recognise.

Let me give an example involving an event that took place after our debate on 10 October. A newspaper report, headed “Warning as bogus cab driver is jailed for rape”, stated:

“Marcos De Souza, 32, was trapped because his DNA was held on file even though he had no criminal record. The Brazilian had lured the drunken 19-year-old into his car as she left a house party in Camden in February.

The victim was so drunk the sex predator believed she would never remember what was about to happen to her…But when she arrived home dishevelled, her boyfriend encouraged her to call police and De Souza’s DNA was found after tests. The sex predator was traced because police had taken his DNA when he was arrested after a previous girlfriend claimed he had assaulted her. The case was discontinued but his profile was retained on the national database.”

That DNA would not have been retained under the Government’s current proposals.

I accept that my amendment is not perfect. I may not have advanced the same argument in the past, and it is possible that I shall not do so in the future. The purpose of the amendment is to persuade the Minister to reflect again on the views of the hon. Member for Shipley and other Members.

[Keith Vaz]

I apologise for missing the earlier part of my right hon. Friend’s no doubt excellent speech. Given that his amendment is raising a number of issues, will he respond to the concern that some of us feel about the disproportionate number of black and Asian people whose names and details are on the database? There seems to be no explanation for it.

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[Mr Hanson]

I consider the retention of the six-year limit specified by the 2010 Act to be a proportionate response. Certainly issues related to stop-and-search powers and charging need to be investigated in the context of police practice, but the fact remains that the DNA that is being kept under the Act has prevented the committing of further crimes, and would continue to do so if the six-year period were retained. I am happy for my right hon. Friend to take up the issue of how DNA is taken in the first place, and to draw attention to instances in which people are picked up and charged but not convicted, or picked up and not charged at all. However, I venture to suggest that that issue is separate from the one that we are considering, which is the retention of DNA over a long period.

[Mike Crockart (Edinburgh West) (LD)]

May I try to help the right hon. Gentleman? The basic principle being advanced is that the retention of DNA prevents further crimes, but I think that what he really means is that it assists in the detection of further crimes. The mere holding of DNA would not have prevented even the case that he cited.

[Mr Hanson]

I am afraid that I disagree fundamentally with the hon. Gentleman. Someone might be picked up as a result of the retention of DNA following the commission of one crime, but how many times has the hon. Gentleman seen reports about serial rapists or serial murderers on the television news? Potential further victims might not be actual victims because the individual concerned had been apprehended owing to the collection of his DNA. As I have said, I accept that my amendment is flawed, but I believe that the principle behind the use of DNA and the retention of the six-year period for the purpose of dealing with serious sexual crimes is fundamental.

[Mike Crockart]

I accept some of what the right hon. Gentleman has said, but he should be very careful about the language that he uses in debates such as this. He should not blindly claim that the retention of DNA would prevent 6,500 further offences, as he did earlier, because that is simply not correct. The retention of DNA would contribute to detection, but it would not prevent.

[Mr Hanson]

I venture to disagree. The figures that I gave were Home Office figures produced for the Minister in July 2010.

The point that I am making, which I think is valid, is that the retention of DNA could, in a number of cases, prevent repeat offences. That is why the hon. Member for Shipley supports the amendment, and why my hon. Friends agree with what I have said. As I said to my hon. Friend the Member for Islington North (Jeremy Corbyn), it is sometimes a case of making a balanced judgment. We make judgments as Ministers, and the six-years judgment was the one that we made within the envelope that was available to us. I believe that it was the right judgment, and my amendments—which I accept are flawed—were tabled so that we could debate the principle again.

[Jonathan Edwards (Carmarthen East and Dinefwr) (PC)]

I have been following the right hon. Gentleman’s argument with some interest. Would it not be more consistent with his argument about prevention if everyone’s details were put on a DNA database—not that I am recommending such a course of action?

--- Later in debate ---

[Mr Hanson]

There is a range of views in the House, but what we have been trying to do consistently, both in opposition and in government, is maximise the amount of time for which we can retain DNA within European law, and we believe that six years is an appropriate period. I believe—and Home Office information on future crimes confirms—that that can help us to catch criminals and bring people to justice, and indeed it has done so. I ask the Minister to think again before it is too late. I welcome the changes that he has made in Lords amendments 1 and 2, I welcome his introduction of further safeguards, I welcome the fact that Lords amendment 2 allows DNA samples to be examined for different periods, and indeed I welcome the changes that he has made generally. I simply ask why we have not considered them in a wider context so far.

I want to say a little about two amendments which, at a very late stage, were grouped with the DNA proposals. Lords amendment 9 deals with biometric testing in schools. It changes the law so that only one parent, rather than both parents, must give written consent, but retains the position whereby either parent can withdraw consent. Our amendment changes the wording from “and” to “or” so that biometric data can be collected if one parent has given consent or neither parent has withdrawn consent.

[Dr Huppert]

I assume that the right hon. Gentleman’s amendments are carefully drafted and that he intends what they state. Does he agree that the consequence of that change would be as follows: if no parent has consented but neither has actively objected, that would count as consent—in other words, consent would be assumed even if neither parent had ever said they were happy for that to happen?

[Mr Hanson]

Yes; my hon. Friend the Member for Kingston upon Hull North (Diana Johnson) has dealt with this matter in Committee and throughout the Bill’s passage, and that is the position of the official Opposition.

We note the amendments proposed in the other place by the Government, and there has been some recognition that the original clauses as drafted were far too onerous, as they needed both parents to give written consent for biometric data to be taken from the child. The amendments also correct an omission, by recognising that not all children have parents, and that those with caring responsibilities needed to be included in this provision for it to be able to work effectively. However, we also note that one parent can still overrule the consent of the other in agreeing for the child to give biometric data, which, again, can cause confusion for schools. We think that, overall, this policy is still unwieldy and unmanageable for most schools.

Furthermore, we do not believe that allowing a child to override their parents’ wish to allow biometric data to be taken is sensible or correct. I would be grateful if the Minister could confirm that that would be the case under the proposals as they currently stand. There does not appear to be any other circumstance in which a child of, for example, five years of age can overrule parental consent. Also, we note that if the parents have refused to give consent, the child is not in a position to override the parents’ wishes if the child chooses to give consent. We think that amendment (a) to Lords amendment 9 would be a further sensible step, by allowing schools to operate this policy in a more manageable way by presuming an acceptance of biometric data being taken if no contact is made by the parents or carers once they have been notified.

I welcome Lords amendment 27. It gives a more prominent role to Parliament. As I have argued previously, it would be appropriate for the Government to lay an order before the House in order to ensure that these matters are dealt with during recesses or general election campaigns. It is important that the Government lay an order before the House, but it is also important that the Government make a statement as to the purposes of the order. I seek assurances from the Minister that he will not lay any order before the House without making a statement to the House explaining the reasons for seeking an order in those exceptional circumstances.

I have concerns about Lords amendment 28. It will allow the Government to withdraw temporary extensions to anti-terror measures without any parliamentary procedure at all. The effect will be to demand that the Government must seek parliamentary approval when strengthening anti-terror measures, but that they can weaken anti-terror measures without consulting Parliament. I heard the Minister’s explanation of that. Temporary extension will be brought in only during times of exceptional risk and the individuals held under these measures will be considered a serious threat to national security. Therefore, if Parliament has had to decide that these measures are necessary in the first instance, Parliament should also get to decide that these powers are no longer necessary. There is no more important issue than protecting the public, but we must have an explanation and an order placed before the House when these powers are revoked.

I accept that our amendment is flawed and does not achieve the objective I would wish, but there are major issues in respect of the retention of DNA which the Minister should, even at this late stage, reconsider and re-examine in detail. I hope he will also answer the questions I asked about counter-terrorism and biometrics in school.

[Kate Green (Stretford and Urmston) (Lab)]

I wish to raise one specific issue in relation to Lords amendment 3, and I put on the record my interest as a life member of the Magistrates Association. Ministers propose that the possible holding of DNA on the database beyond the period covered by the legislation could be agreed on application to a district judge. My understanding is that they have drawn on the experience in Scotland, where agreement from the sheriff and the sheriff courts is required. Has consideration been given to extending that provision to cover justices of the peace who are members of the lay magistracy? Unlike in Scotland, the magistrates court works as a single bench; there is no hierarchical difference or difference in terms of courts between district judges and lay magistrates.