[Relevant document: The Twelfth Report from the Joint Committee on Human Rights, Legislative Scrutiny: Crime and Security Bill; Personal Care at Home Bill; Children, Schools and Families Bill, HC 402.]
Consideration of Bill, as amended in the Public Bill Committee
New Clause 1
Retention, destruction and use of fingerprints and samples
‘For section 64 of the Police and Criminal Evidence Act 1984 (destruction of fingerprints and samples) there is substituted—
“64 Destruction of fingerprints and samples
(1) Unless provided otherwise in this section, where fingerprints, impressions of footwear or samples are taken from a person in connection with the investigation of an offence, the fingerprints, impressions of footwear or samples or any DNA profile may not be retained after they have fulfilled the purposes for which they were taken and shall not be used by any person except for purposes related to the prevention or detection of crime, the investigation of an offence, the conduct of a prosecution or the identification of a deceased person or of the person from whom a body part came.
(2) In subsection (1) above—
(a) the reference to crime includes a reference to any conduct which—
(i) constitutes one or more criminal offence (whether under the law of a part of the United Kingdom or of a country or territory outside the United Kingdom); or
(ii) is, or corresponds to, any conduct which, if it all took place in any one part of the United Kingdom, would constitute one or more criminal offences; and
(b) the references to an investigation and to a prosecution include references, respectively, to any investigation outside the United Kingdom of any crime or suspected crime and to a prosecution brought in respect of any crime in a country or territory outside the United Kingdom.
(3) A DNA sample must be destroyed—
(a) as soon as a DNA profile has been derived from the sample, or
(b) if sooner, before the end of the period of six months beginning with the date on which the sample was taken.
(4) Any other sample to which this section applies must be destroyed before the end of the period of six months beginning with the date on which it was taken.
(5) Fingerprints, impressions of footwear and DNA profiles are not required to be destroyed if they were taken from a person convicted of a recordable offence.
(6) Where any fingerprint, impression of footwear or sample has been taken from a person who is arrested for or charged with a sexual offence or violent offence, the fingerprint, impression of footwear or DNA profile shall not be destroyed—
(a) in the case of fingerprints or impressions of footwear, before the end of the period of three years beginning with the date on which the fingerprints or impression were taken, such date being the “initial retention date”; or
(b) in the case of a DNA profile, before the end of the period of three years beginning with the date on which the DNA sample from which the DNA profile was derived was taken, such date being the “initial DNA retention date”; or
(c) if an application is made to the Court under subsection (7), until such later date as may be provided by subsection (8) or (10) below.
Provided always that if the person is convicted of a recordable offence, subsection (5) shall apply.
(7) On application made by the responsible chief officer of police within the period of three months before the initial retention date or the initial DNA retention date as the case may be, the Crown Court, if satisfied that there are reasonable grounds for doing so, may make an order amending, or further amending, the date of destruction of the relevant fingerprint, impression of footwear or DNA profile.
(8) An order under subsection (7) shall not specify a date more than two years later than—
(a) the initial retention date in relation to fingerprints or impressions of footwear or
(b) the initial DNA retention date in the case of a DNA profile.
(9) Any decision of the Crown Court may be appealed to the Court of Appeal within 21 days of such decision.
(10) A fingerprint, an impression of footwear or a DNA profile shall not be destroyed where—
(a) an application under subsection (7) above has been made but has not been determined;
(b) the period within which an appeal may be brought under subsection (9) above against a decision to refuse an application has not elapsed; or
(c) such an appeal has been brought but has not been withdrawn or finally determined.
(a) the period within which an appeal referred to in subsection (9) has elapsed without such an appeal being brought; or
(b) such an appeal is brought and is withdrawn or finally determined without any extension of the time period referred to in subsection (8);
the fingerprint, impression of footwear or DNA profile shall be destroyed as soon as possible thereafter.
(12) Subject to subsection (13) below, where a person is entitled to the destruction of any fingerprint, impression of footwear or sample taken from him or DNA profile, neither the fingerprint, nor the impression of footwear, nor the sample, nor any information derived from the sample, nor any DNA profile shall be used in evidence against the person who is or would be entitled to the destruction of that fingerprint, impression of footwear or sample.
(13) Where a person from whom a fingerprint, impression of footwear or sample has been taken consents in writing to its retention in the case of a fingerprint or impression of footwear or the retention of any DNA profile—
(a) that fingerprint, impression or DNA profile as the case may be need not be destroyed; and
(b) subsection (12) above shall not restrict its use;
(i) no DNA profile may be retained on any child under the age of 10 years; and
(ii) consent given for the purposes of this subsection shall be capable of being withdrawn by such person upon making written application to the responsible chief officer of police or person authorised by the Secretary of State for such purpose whereupon such fingerprint, impression of footwear or DNA profile shall be destroyed as soon as possible following receipt of such written application.
(14) For the purposes of subsection (13) above if shall be immaterial whether the consent is given at, before or after the time when the entitlement to the destruction of the fingerprint, impression of footwear or DNA profile arises.
(15) In this section—
“DNA profile” means any information derived from a DNA sample;
“DNA sample” means any material that has come from a human body and consists of or includes human cells;
“the responsible chief officer of police” means the chief officer of police for the police area—
(a) in which the samples, fingerprints or impressions of footwear were taken; or
(b) in the case of a DNA profile, in which the sample from which the DNA profile was derived was taken;
a “sexual offence” or “violent offence” shall mean such offences of a violent or sexual nature as shall be set out in any order made by the Secretary of State with reference to this section.
(16) Nothing in this section affects any power conferred by paragraph 18(2) of Schedule 2 to the Immigration Act 1971 or section 20 of the Immigration and Asylum Act 1999 (c. 33) (disclosure of police information to the Secretary of State for use for immigration purposes).
(17) An order under this section must be made by statutory instrument.
(18) A statutory instrument containing an order under subsection (17) above shall not be made unless a draft of the instrument has been laid before and approved by resolution of each House of Parliament.”.’.—(James Brokenshire.)
Brought up, and read the First time.
With this it will be convenient to discuss the following: new clause 5—Destruction of fingerprints and samples—
‘(1) The Police and Criminal Evidence Act 1984 (c. 60) is amended as follows.
(2) After section 64A insert—
“64B Destruction of fingerprints and samples etc.
(1) Subject to subsection (2), where a sample has been taken from a person under this Part, unless such a person has given consent in accordance with section 64(3AC), all such samples and all information derived from such samples shall be destroyed as soon as possible following a decision not to institute criminal proceedings against the person or on the conclusion of such proceedings otherwise than with a conviction.
(2) Subsection (1) above shall not apply where the record, sample or information in question is of the same kind as a record, a sample or, as the case may be, information lawfully held in relation to the person.
(3) For the purposes of this section, criminal proceedings shall not be deemed to have concluded until the earlier of—
(a) the lapse of any applicable appeal period, and
(b) a decision not to appeal such proceedings.
(4) Material falls within this subsection if it is—
(a) fingerprints or impressions of footwear taken from the person in connection with the investigation of the offence;
(b) a DNA profile derived from a DNA sample so taken;
(c) photographs falling within a description specified in the regulations; or
(d) information derived from DNA samples so taken from a person.
(5) For the purposes of this section—
(a) “photograph” includes a moving image, and
(b) the reference to a DNA sample is a reference to any material that has come from a human body and consists of or includes human cells.”’.
New clause 6—Retention of voluntary samples—
‘(1) The Police and Criminal Evidence Act 1984 (c. 60) is amended as follows.
(2) After section 64(1A)(b) insert—
“(c) any other provision in this Part does not prohibit or restrict their retention or require their destruction.”.
(3) For section 64(3AC) substitute—
“(3AC) Where a person from whom a fingerprint, impression of footwear or sample has been taken consents in writing to its retention—
(a) that sample need not be destroyed under subsection (3) above;
(b) subsection (3AB) above shall not restrict the use that may be made of the sample or of any information derived from it; and
(c) that consent shall be treated as comprising a consent for the purposes of section 63A(1C) above; provided that—
(i) no sample or information derived from any sample may be retained on any child under the age of 10 years; and
(ii) consent given for the purposes of this subsection shall be capable of being withdrawn by such person upon making written application to the responsible chief officer of police or person authorised by the Secretary of State for such purpose whereupon such sample and any information derived therefrom shall be destroyed as soon as possible following receipt of such written application.”’.
New clause 7—Repeal of section 82 of the Criminal Justice and Police Act 2001—
‘Section 82 of the Criminal Justice and Police Act 2001 is repealed.’.
New clause 9—National DNA Database Reviewer—
‘(1) Within 12 months of the coming into force of any of sections 14 to 21, the Secretary of State shall appoint a Reviewer to be known as the National DNA Database Reviewer.
(2) Subject to subsection (4), the National DNA Database Reviewer shall keep under review—
(a) the exercise and performance, of the powers and duties conferred or imposed by section 64ZI(5) of the Police and Criminal Evidence Act 1984;
(b) the exercise and performance of the powers conferred by section 64ZK of the Police and Criminal Evidence Act 1984;
(c) the exercise and performance of the powers and duties conferred or imposed by Article 64ZI(5) of the Police and Criminal Evidence (Northern Ireland) Order 1989;
(d) the exercise and performance of the powers conferred by Article 64ZK of the Police and Criminal Evidence (Northern Ireland) Order 1989;
(e) the exercise and performance of the powers and duties conferred or imposed by paragraph 14F(5) of Schedule 8 to the Terrorism Act 2000;
(f) the exercise and performance of the powers and duties conferred or imposed by paragraph 14G of Schedule 8 to the Terrorism Act 2000; and
(g) the exercise and performance of the powers and duties conferred or imposed by section 18(3E) of the Counter-Terrorism Act 2008.
(3) Within 12 months of his appointment, and every 12 months thereafter, the National DNA Database Reviewer must lay a report of the findings of his review before both Houses of Parliament.
(4) Each report of the National DNA Database Reviewer must include consideration of—
(a) the number of decisions taken during the proceeding 12 months period under each of the powers in subsection (2);
(b) the grounds for any decisions taken during any preceding 12 month period under each of the powers in subsection (2);
(c) an equality impact assessment of the exercise of the powers in subsection (2) over the preceding 12 month period; and
(d) an assessment of the operation of each of the powers in subsection (2).’.
Government amendments 8 to 10.
Amendment 30, in clause 6, page 13, line 21, at end insert—
‘15A Fingerprints and non-intimate samples may only be taken under sections 61(5A), 61(5B), 63(3ZA) and 63(3A) from a person at a police station.’.
Government amendments 11 to 13.
Amendment 3, page 28, line 20, leave out Clauses 14 to 21.
Amendment 29, page 28, line 20, leave out Clauses 14 to 20.
Amendment 36, in clause 14, page 31, line 5, leave out from ‘offence’ to end of line 6.
Amendment 37, page 31, leave out lines 11 to 23 and insert—
‘(3) Subject to subsections (3AA) to (3AI), the material must be destroyed as soon as it has fulfilled the purpose for which it was taken or supplied.
(3AA) Where any fingerprint, impression of footwear or DNA profile has been taken from a person under this Part who is arrested for or charged with a sexual offence or violent offence, the fingerprint, impression of footwear or DNA profile shall be destroyed no later than—
(a) in the case of fingerprints or impressions of footwear, before the end of the period of three years beginning with the date on which the fingerprints or impression were taken, such date being the “initial retention date”; or
(b) in the case of a DNA profile, before the end of the period of three years beginning with the date on which the DNA sample from which the DNA profile was derived was taken (or if the profile was derived from more than one DNA sample, the date on which the first of those samples was taken), such date being the “initial DNA retention date”; or
(c) such later date as may be ordered under subsection (3AB).
(3AB) On application made by the responsible chief officer of police within the period of three months before the initial retention date or the initial DNA retention date as the case may be, the Crown Court, if satisfied that there are reasonable grounds for doing so, may make an order amending, or further amending, the date of destruction of the relevant fingerprint, impression of footwear or DNA profile.
(3AC) An order under subsection (3AB) shall not specify a date more than two years later than—
(a) the initial retention date in relation to fingerprints or impressions of footwear, or
(b) the initial DNA retention date in the case of a DNA profile.
(3AD) Any decision of the Crown Court may be appealed to the Court of Appeal within 21 days of such decision.
(3AE) Subsection (3AA) does not apply where—
(a) an application under subsection (3AB) above has been made but has not been determined;
(b) the period within which an appeal may be brought under subsection (3AD) above against a decision to refuse an application has not elapsed; or
(c) such an appeal has been brought but has not been withdrawn or finally determined.
(a) the period within which an appeal referred to in subsection (3AD) has elapsed without such an appeal being brought, or
(b) such an appeal is brought and is withdrawn or finally determined without any extension of the time period referred to in subsection (3AC),
the fingerprint, impression of footwear or DNA profile shall be destroyed as soon as possible thereafter.
(3AG) For the purposes of this section a “sexual offence” or “violent offence” shall mean such offences of a violent or sexual nature as shall be set out in any order made by the Secretary of State with reference to this section.
(3AH) An order under this section must be made by statutory instrument.
(3AI) A statutory instrument containing an order under subsection (3AH) above shall not be made unless a draft of the instrument has been laid before and approved by resolution of each House of Parliament.’.
Amendment 38, page 31, line 27, leave out from beginning to end of line 10 on page 35.
Amendment 33, page 37, line 26, at end insert—
‘(5) For the purposes of subsection (1), “for the purposes of national security” means for the purposes of investigating significant threats to the security of the United Kingdom arising from—
(a) terrorist activities;
(b) nuclear weapons and other weapons of mass destruction;
(c) trans-national organised crime;
(d) global instability and conflict;
(e) civil emergencies; or
(f) state-led threats to the United Kingdom.’.
Amendment 34, page 37, line 26, at end insert—
‘64ZKA Approval required for retention for the purposes of national security
(1) This section applies where a chief officer determines that retention for the purposes of national security is necessary.
(2) Subject to subsection (3), the determination shall not take effect until such time (if any) as—
(a) the determination has been approved by the Information Commissioner; and
(b) written notice of the Commissioner’s decision to approve the determination has been given, in accordance with subsection (3), to the chief officer who made the original determination.
(3) Where subsection (2) applies—
(a) the Information Commissioner shall give his approval under this section to the authorisation if, and only if, he is satisfied that there are reasonable grounds for believing that the requirements of section 64ZK(1) are satisfied in the case of the determination; and
(b) the Information Commissioner shall, as soon as reasonably practicable after making that decision, give written notice of his decision to the Chief Constable.
(4) Any determination under paragraph (1) includes a decision that a determination should be renewed pursuant to section 64ZK(3).’.
Amendment 39, in clause 15, page 41, line 46, leave out from ‘offence’ to end of line 47.
Amendment 40, page 42, leave out lines 5 to 17 and insert—
‘(3) Subject to paragraphs (3AA) to (3AI), the material must be destroyed as soon as it has fulfilled the purpose for which it was taken or supplied.
(3AA) Where any fingerprint, impression of footwear or DNA profile has been taken from a person under this Order who is arrested for or charged with a sexual offence or violent offence, the fingerprint, impression of footwear or DNA profile shall be destroyed no later than—
(a) in the case of fingerprints or impressions of footwear, before the end of the period of three years beginning with the date on which the fingerprints or impression were taken, such date being the “initial retention date”; or
(b) in the case of a DNA profile, before the end of the period of three years beginning with the date on which the DNA sample from which the DNA profile was derived was taken (or if the profile was derived from more than one DNA sample, the date on which the first of those samples was taken), such date being the “initial DNA retention date”; or
(c) such later date as may be ordered under paragraph (3AB).
(3AB) On application made by the Chief Constable within the period of three months before the initial retention date or the initial DNA retention date as the case may be, the Crown Court, if satisfied that there are reasonable grounds for doing so, may make an order amending, or further amending, the date of destruction of the relevant fingerprint, impression of footwear or DNA profile.
(3AC) An order under paragraph (3AB) shall not specify a date more than two years later than—
(a) the initial retention date in relation to fingerprints or impressions of footwear, or
(b) the initial DNA retention date in the case of a DNA profile.
(3AD) Any decision of the Crown Court may be appealed to the Court of Appeal within 21 days of such decision.
(3AE) Paragraph (3AA) does not apply where—
(a) an application under paragraph (3AB) above has been made but has not been determined;
(b) the period within which an appeal may be brought under paragraph (3AD) above against a decision to refuse an application has not elapsed; or
(c) such an appeal has been brought but has not been withdrawn or finally determined.
(a) the period within which an appeal referred to in paragraph (3AD) has elapsed without such an appeal being brought, or
(b) such an appeal is brought and is withdrawn or finally determined without any extension of the time period referred to in paragraph (3AC),
the fingerprint, impression of footwear or DNA profile shall be destroyed as soon as possible thereafter.’.
Amendment 41, page 42, line 21, leave out from beginning to end of line 2 on page 46.
Amendment 42, page 49, line 29, at end insert—
‘(5) For the purposes of this section a “sexual offence” or “violent offence” shall mean such offences of a violent or sexual nature as shall be set out in any order made by the Secretary of State with reference to the Police and Criminal Evidence (Northern Ireland) Order 1989.
(6) An order under this section must be made by statutory instrument.
(7) A statutory instrument containing an order under subsection (6) above shall not be made unless a draft of the instrument has been laid before and approved by resolution of each House of Parliament.’.
Amendment 4, in clause 22, page 71, line 24, leave out from first ‘of’ to ‘which’ and insert
‘section [Retention, destruction and use of fingerprints and samples]’.
Amendment 5, page 71, line 31, leave out ‘sections 64 to 64ZN’ and insert ‘section 64’.
Amendment 35, page 72, line 2, at end insert—
‘(6) A statutory instrument containing an order under this section must be laid before Parliament within 12 months of Royal Assent to this Act.’.
Government amendments 14 to 16.
Amendment 6, in clause 58, page 106, line 30, leave out subsections (4) to (8).
Amendment 7, page 106, line 30, leave out ‘20 to’ and insert ‘22 and’.
There is little doubt about the scope and powerful effect of DNA evidence. In many respects, the use of DNA has revolutionised policing. The ability to match tiny traces of DNA left at the scene of a crime by an offender with the DNA that is taken from a suspect has helped to solve serious crimes and to reduce the scope for miscarriages of justice. We agree that the use of DNA can be an important evidential tool in prosecuting crimes and bringing offenders to justice. The use of modern scientific techniques makes an important contribution to combating crime, but the use of that technology must strike the right balance between the promotion of the wider public interest and public safety, and the protection of important private-life interests, which are central to this debate, to the new clause and to the Government’s proposals in the Bill. Unlike the Government, apparently, we acknowledge that there are limits to both the effectiveness and acceptability of DNA use if it is taken too far.
The DNA database continues to grow at an exceptional rate. More than 32,000 profiles were added in November 2009 alone. Proportionately, we have the largest such database in the world. This country claims a pioneering role in the utilisation of DNA technology, and that is something that we can be proud of. In so doing, however, we have a special responsibility to ensure that the way in which it is used strikes the right balance regarding what is permissible when it comes to potential interference in people’s private lives. Until recently, the Government took the view that the indefinite retention of DNA profiles was acceptable. In their view, simply growing the DNA database for the sake of doing so was a policy objective in its own right. For the past year, they have been fighting hard to limit their commitment to following the judgment of the European Court of Human Rights in the S and Marper case. The judgment ruled that the indefinite retention of the DNA profiles of those who have never been convicted of an offence was not in accordance with the relevant convention rights. It sums up the current viewpoint of this Government that even if someone volunteers their DNA, once it is on the national DNA database, they cannot get it removed except in exceptional circumstances.
In response to the Court’s judgment, the Government first said that they wanted to deal with the matter by order, out of the glare of full parliamentary scrutiny. Next, they said that they would retain data and profiles for up to 12 years. Now, under pressure, they have come down to a retention period of six years for those who have never been convicted of an offence. However, they remain obdurate about the basic principle of retaining data for as long as possible, regardless of what people have done or whether they were even charged, let alone found guilty. DNA that is taken from anyone who ends up in a police station following arrest will be stored by the state for six years just in case.
The number of profiles on the DNA database has certainly grown. The number of profiles stood at just over 2 million in 2003, and it is now well above 5.5 million. The full impact of the situation becomes clear only when one breaks down the figures in relation to the countries of the United Kingdom. Some 4 per cent. of the population of Northern Ireland, nearly 5 per cent. of the population of Scotland and more than 10 per cent. of the population of England and Wales are affected. However, rather than there being an increase in the number of crimes detected, the reverse has happened. The focus on quantity rather than on the quality of the data retained has led to diminishing returns. The proportion of crimes detected by DNA has dropped. The figure two years ago was 0.76 per cent., and in the past year it was 0.67 per cent. Similarly, the proportion of crimes detected in which a DNA match was available was 36.5 per cent. two years ago, and 32.4 per cent. last year.
Is my hon. Friend making a distinction between crimes which are detected and cases which are carried forward with corroborative evidence based on DNA? In the latter, there is a very large number of corroborative evidence cases.
There is a distinction to be drawn between, say, detections and convictions. That is an important distinction to make. Indeed, the National Policing Improvement Agency recognised that in a previous DNA database report:
“It is important to note that the availability of DNA match intelligence may not have been causal in solving the crime as detections are achieved through integrated criminal investigation and not by forensic science alone.”
Such cases are often quite complicated, so although a DNA match may have played an important role, that of itself may not be the determining factor. It can only place someone at a particular point at a particular time. The Crown Prosecution Service will look for other corroborative factors in bringing its their prosecution case.
There have been other consequences of the Government’s database state policy approach. About a million people on the database have never been convicted, cautioned or even formally warned or reprimanded, as recorded by the police national computer. It is estimated that there are records of approximately 100,000 innocent children on the database. It is the impact that this has on those who feel they have been criminalised that is so damaging. As one person who wrote to my hon. Friend the Member for Ashford (Damian Green) put it:
“The charges were dropped five hours later but I was informed that my DNA and fingerprints would remain on their files as though I was a common criminal. As a respected member of the community, holder of the British Empire Medal and a retired Army Officer I shouldn’t have to be put through this continual torment.”
I am sure the hon. Gentleman would be the first to admit that the Government have moved since Second Reading. That is because of the pressure from all sides of the House. Does he accept that we are in this situation because the Government ought to have moved quickly on the removal of DNA profiles from the database? If that system had been working more effectively, we would not be in the position that we are in today.
That has been highlighted by what might be described as the postcode lottery, an issue on which I know the right hon. Gentleman has focused clearly. The fact that certain police forces are prepared, in exceptional circumstances, under guidance from the Association of Chief Police Officers, to remove the profiles of those never convicted of and never charged with an offence, whereas other police forces will not remove any of those details, has drawn attention to the issue. However, the right hon. Gentleman needs to be careful. An individual must approach the police to have that record removed. There is a big difference between a robust system that reflects the concept that people are innocent unless proven guilty and proactively removes those profiles, and a system whereby profiles are removed only when an individual approaches the police with that request.
The make-up of the database has had a starkly disproportionate impact on minority communities. It is thought to contain the records of about 40 per cent. of black men in the UK. Some have suggested that when the focus is narrowed to young black men, the figure jumps to 70 per cent. That compares with 13 per cent. of Asian men and 9 per cent. of white men. The national DNA database and the approach taken to it are perceived to have criminalised minority communities and to have taken an almost aggressive stance towards them. I know, from the discussions that I have had, that the issue is of significant concern for a number of those communities.
More fundamentally, the measure fails to take account of one of the fundamental principles of our liberal democracy: the presumption of innocence before the law unless one has been proven guilty. That principle should be an important guiding factor in framing the debate on retention, rather than being an inconvenient anomaly, as the Government appear to view it, given their historical approach to DNA retention.
However, we agree with the Government on some things: DNA samples should be destroyed as soon as practicable, once a profile has been taken; when an adult has been convicted of a recordable offence, DNA should be retained indefinitely; and when consent to put DNA profiles on the database has been volunteered, the withdrawal of that consent should be possible. We have also long argued for the need to ensure that police can retrospectively take samples for a longer period after conviction, and from those convicted overseas. We are therefore glad that the Government have responded positively to that call, and we welcome their changes to improve the oversight and reporting of the national DNA database. I welcome also their amendments to clarify that arrangement and make it somewhat stronger.
I have been trying to follow the hon. Gentleman’s logic. He is content for DNA to be taken for up to three years for serious offences, but not for up to six years, and I cannot quite understand the logic of the difference between the two, apart from the time scale given the judgment that has been made. I really cannot see his logic.
Well, we shall come to the judgment on timing.
I was just about to turn to retention, which is central to the debate, and the balance to be struck in terms of the presumption of innocence until proven guilty. I appreciate that the Minister and the Government take the reverse approach of wishing to retain data for as long as possible. That has been their historical approach, and they have made their position clear. We approach the issue from the alternative direction, saying that DNA should be retained for the minimum period that it is safe to do so. That is why we have drawn a distinction: we do not simply say that all DNA profiles of anyone arrested for an offence but not convicted should be removed; we strike that balance—that proportionate balance, as we see it—by having a period during which the DNA of those arrested for an offence but not necessarily charged or convicted should be retained.
There is a real difference between us on the retention of profiles, and the Minister alluded to it. The Government argue that, when someone has been acquitted of any wrongdoing, they should treat them as a future or potential suspect in a criminal investigation. Such people are supposed to be innocent in the eyes of the law, but the Government are suggesting a blanket period of six years, regardless of the nature of the offence, the crime that may or may not have been committed or whether anyone was found guilty.
The Government have sought to justify their position on two main grounds. Their “hazard rate analysis”, as they call it, compares the likelihood of re-arrest within a specified period following an initial arrest with the general propensity for arrest in the general population. The “arrest to arrest hazard curve” is the analysis on which the Government have sought to pin their six-year period. However, by doing so the Government conflate the fundamental difference between arrest and conviction. They use re-arrest as a proxy for having committed an offence, even though a second arrest may be as unsound as the first. They also fail to take account of what has been termed “the confirmation bias by investigating officers”—the fact that, once a person is known to the police, they are more likely to be considered a suspect when future offences are investigated. A bias in the statistics is created as a consequence.
The Government acknowledge that the analysis is based on extrapolated, rather than real, data, because they had only a three-year window to consider the data that were available. Therefore, estimated data on the general population was used, the extrapolated risk curve is quite sensitive to errors, and the lines are measured with some degree of uncertainty.
It is highly questionable whether this latest Home Office-produced research offers much more than the previous, incomplete research produced by the Jill Dando Institute of Crime Science, which the Home Office published in support of its previous policy of retaining DNA for 12 years. As Gloria Laycock, the director of the Jill Dando Institute, acknowledged, it was a mistake to publish that incomplete research, which was based on data to which it did not even have direct access. She said:
“That was probably a mistake with hindsight. We should have just said ‘you might as well just stick your finger in the air and think of a number’.”
It is also interesting to note that the Information Commissioner has formed a different view from that of the Government on the interpretation of the hazard rate analysis data, stating that he
“remains concerned that the way this evidence is being interpreted at present does not provide an appropriate basis for the proposed retention periods.”
He suggests that a shorter retention period for those not convicted of any crime should be adopted than that advocated by the Government:
“The Commissioner does not consider that the evidence presented supports a general retention period of anything like six years.”
Since the Bill came out of Committee, I have been reflecting on what stands between us and the Government on this issue. It is not as neat as the question of three or six years’ retention; it is to do with the fact that policing has to be policing by consent. During the passage of the Bill, and in the build-up to it, the Government have not succeeded in getting the consent of the people, in the broadest sense, for their proposals. Police officers and police forces have too often given the impression that if they retain DNA it is because they have reasonable suspicion that someone has committed an offence or may commit an offence. The Government have failed to convince people that they have the public’s consent to what they are proposing.
A mini-speech perhaps, but one with some important points wrapped up in it as regards the need for policing by consent, the public’s confidence and trust in policing, and the way in which the national DNA database is operated. Indeed, senior police officers have made that very evident in saying that it is for us in Parliament to decide what is appropriate, while reflecting the need to ensure that there is that trust and confidence in policing as a whole. In many ways, that mirrors some of the points that the right hon. Member for Leicester, East (Keith Vaz) has already made.
The second, and perhaps more emotive, justification that the Government have given for their approach has been based on individual cases, with the claim that certain serious crimes might not have been solved if an alternative approach to the one that they have advanced were adopted. However, careful examination of the facts of those cases shows that either they would have been detected and solved by virtue of our proposals in new clause 2 or there were other material factors that would have led to an arrest, DNA sampling, and the requisite corroborative evidence being obtained to secure a conviction.
Let us take, for example, the case of Abdul Azad, who was convicted of an appalling stranger rape that took place in 2005. His conviction was partly the result of DNA found under the fingernails of his victim. It was an appalling crime, but it is also an example of a crime in which the DNA profile would still have been available to the police under our proposals, as Azad had previously been arrested for violent disorder—a crime of violence.
Or let us take the case of Abdirahman Ali Gudaal, a Dutch national who was arrested on suspicion of robbery and went on to commit an appalling and shocking rape two years later. The Home Office thought that the case supported its arguments so strongly that it tried to count it twice in a letter of what were intended to be five good examples that it sent to members of the Public Bill Committee. In addition to trying to pass off one case as two examples as the result of an administrative error, another oversight was the failure to mention that the appalling rape took place in Gudaal’s bedsit flat. The Home Office’s own anonymised summary of the case also suggests that Gudaal was arrested after being identified by his victim.
The point is that the Minister has sought to advance various individual cases to prove that our approach is somehow unreasonable and that we are in some way seeking to support the perpetrators of serious crimes. Actually, an analysis of those cases does not bear that out. In citing them, the Government are in many ways making our case for us.
I always hate to disagree with my hon. Friend, but he will know the point that I made in Committee about the case of D, in which I acted for the defendant. The rape occurred some 10 years or so before his arrest, and he was arrested only because of the DNA that was found on the rape sample.
I am grateful to my right hon. and learned Friend for highlighting that case, as he did in Committee, but the Government will acknowledge that even on the basis of their proposals there must be a risk that someone may not be caught. There is always a case for balance and judgment.
Does the hon. Gentleman not feel that those who advance the one case of finding a rapist or other criminal as a result of DNA are actually making the case for everyone being on the DNA database? I am sure he would agree that that would be a very large step for us to take.
I would always hesitate to make law based on individual cases, but that in no way undermines the considerable traumas of the victims of the crimes that have rightly been solved using DNA evidence. However, the point is that such cases are complex, and forensics are often only one element in solving a particular case, so it is a mistake to present the matter in a stark way.
I was shocked by the Minister’s intervention just now. His form of logic would strip away all civil liberties and restrict any brakes on powers of the state that might ever, in any circumstances, have led to the prevention of a serious crime if they had only been in place. I cannot believe that we have Ministers who place so little value on our civil liberties and cannot see the fine judgment that has to be made in coming to a decision on such matters.
Perhaps it is the mindset that this Government have always had of always erring on the side of the Big Brother database state. In many ways they are making the case for universal inclusion on the DNA database, which is utterly unacceptable and, I know, is not the approach that even the Minister takes.
As I have said, there are complications. DNA forensics are often important in securing a conviction, but other material factors and lines of inquiry make a significant contribution. It is spurious to suggest that certain cases, such as those that have been adduced, would have gone unsolved, or that justice would have been denied, as a consequence of the proposals outlined in our new clause 1.
Let us take the case of Jeremiah Sheridan, which was relied on most recently by the Prime Minister. It was a particularly shocking case, as Sheridan brutally raped a disabled woman. In a complex case, he was subsequently caught, prosecuted and convicted because of the DNA that he left behind at the scene. The Prime Minister has claimed that the case would not have been solved if a revised approach to that proposed by the Government were adopted, but he misses the point totally. We should retain DNA that is left behind at crime scenes, and greater focus should be placed on the robustness of that part of the database. When a DNA profile is added to the database following an arrest for an offence, it should be checked against the cold-case database. If someone is subsequently arrested for a different offence and there is a DNA match, they should be prosecuted and the case should be solved.
If the Government’s case studies do anything, they underline the reasoned approach of our proposal, which properly reflects the need to ensure that DNA forensics are available to help the police to bring serious criminals to justice. However, there is a world of difference between maintaining the DNA from crime scenes and keeping on file the DNA of the innocent, just in case they might one day be re-arrested in connection with a crime.
That is the Government’s justification for their approach, but they should concentrate on getting their house in order. There should be much greater focus not simply on growing the DNA database of innocent people for the sake of it, but on obtaining the DNA of those already convicted of offences and those currently residing in Her Majesty’s prisons. I welcome the fact that the Government are finally taking that seriously in some of their proposals in the Bill. That might be a rather better starting point for tackling crime in future.
What is an acceptable period for the retention of DNA records of those arrested for, but not convicted of, any offence? We believe that a similar model to that used in Scotland has some merit. In Scotland, if someone is convicted of a recordable offence, their DNA profile is retained indefinitely, but if they are not convicted of an offence, their DNA profile should not be retained once it has fulfilled the purpose for which it was taken, save for crimes of violence or sexual offences. In the latter category, DNA profiles should be retained for a limited period of three years, with the possibility of an extension for a further two years with court oversight.
The Scottish model was reviewed by Professor James Fraser from the Strathclyde university Centre for Forensic Science in 2008. Despite what the Home Secretary has asserted, Professor Fraser’s terms of reference were wide enough to consider alternatives in other systems, and he recommended no material changes to the current system in Scotland. Lord Bach, the Minister’s colleague in the Ministry of Justice, acknowledged that:
“In determining the appropriateness of the current legislation, Professor Fraser considered data on reoffending rates and conducted a wide consultation. He did not uncover any evidence to suggest that this approach to retention has caused any detriment to the detection of serious crime in Scotland.”
We believe that an approach similar to that in Scotland should be adopted in the other nations of the United Kingdom, but with one important distinction, namely that the trigger for retention in cases involving violence or sexual offences should be arrest rather than charge.
We believe that that approach takes proper account of the competing interests of the individual against the collective need for protection from crime. It strikes the right balance between respect for an individual’s private life and the legitimate interests of the state in preventing and detecting crime. As the Home Office’s hazard rate analysis suggests, that is ultimately a matter of judgment. It is a judgment between retaining trust and confidence in the use of DNA materials, and trust and confidence in the police’s use of such forensics. It is also a judgment on how to treat those who have never been convicted of an offence, the rights of the state to interfere in the lives of others, and the need to protect the public from crime.
The Government have sought to make the issue a political dividing line. So be it. That will expose how they have in many ways played fast and loose with the facts of sensitive cases, and how even now they cling to the view that the state needs to be intrusive and invasive, and that it needs to know as much information about all of us as it can, regardless of proportionality. It will also expose how the fundamental principles of innocence and guilt are almost inconsequential to the Government, and how they continue to delude themselves that draconian powers will mean a safer and more just society.
That is question of judgment, and on that and so many other issues, the Government’s judgment is flawed. They are on the wrong side of the line and the wrong side of the argument, and increasingly, they are failing to uphold the security that they claim to support.
I am delighted that we are able to have a debate of this kind on this very important subject, bearing in mind that so many concerns about the Government’s DNA database proposals were expressed on Second Reading. To help the House, I should point out that today, the Select Committee on Home Affairs published our report into the DNA database. I apologise for not getting it to Members sooner, but we were keen to let the House know of our deliberations in time for this debate. We do not control Government business of course, so we did not know when Report would be. We met in what one might call an emergency session last Thursday to agree this report, and I wish to thank all the members of the Committee for their work.
The report was prompted by the concern expressed on Second Reading—and over the last few years—about the ever-growing DNA database. We can all agree on the facts—I certainly agree with the facts put forward by the hon. Member for Hornchurch (James Brokenshire). There is no dispute that it is one of the largest—if not the largest—DNA databases in the world, and our concern is the way in which it has grown. The Government have often said that information should only be retained if necessary, and that must apply to the use of DNA profiles.
During our deliberations, we took evidence from several individuals, including my hon. Friend the Member for Hackney, North and Stoke Newington (Ms Abbott) and representatives of the Jill Dando Institute of Crime Science. Among our most persuasive witnesses was Sir Alec Jeffreys, the inventor of DNA profiling. When someone as distinguished as Sir Alec appears before a Select Committee and expresses the concern that he never anticipated that the DNA profile of innocent people would be kept on the database, members of the Committee have to listen carefully to him. The Minister was in the session just before or after Sir Alec gave evidence, and I think that he heard that evidence. I do not say that politicians have hidden agendas—many of our agendas are open and transparent—but when someone like Sir Alec says that such retention was not intended, we have to take that seriously.
The Committee had different views about the length of time that people’s DNA should be retained on the database. Some felt strongly that everyone’s DNA should be on the database. Some felt that the DNA of innocent people should not be kept on it at all—in other words, it should be removed almost immediately. However, there was general agreement that the Government had delayed unnecessarily following the decision by the European Court of Human Rights. We could have avoided this dispute if the Government had acted much more quickly.
If there is a need for consensus on Home Affairs issues, this is one of those occasions on which we should have reached all-party agreement, because this issue affects so many of our citizens. There is no dispute on either side of the House that, if DNA helps in the detection of crime—as we say in our report, there is no doubt about that—it must be used to do so. The point of contention is the worry about the ability of this Government or any Government to hold information about citizens and therefore to expand their possession of that information to the detriment of individual citizens. Balancing the rights of the individual and civil liberties with the interests of justice has to be done very carefully.
What one has to resolve is the prejudice to the individual of having their DNA on a national database. The right hon. Gentleman has spoken of the prejudice, but I am not clear what prejudice he is identifying, other than the fact that an innocent individual might object to retention. That is a real consideration, but it is not necessarily prejudice.
I would not say that the right hon. and learned Gentleman was in court every day, but he is there much more often than probably every other Member of the House, bar the hon. Member for Banbury (Tony Baldry), and probably even more than all of us put together. The right hon. and learned Gentleman therefore speaks as an expert, and he knows when such expertise is necessary. However, there is a higher judgment. Our deliberations need to be guided by what is in the public interest, in terms of what the public would want. He sees the matter from a different point of view. He sees it as a lawyer—a very distinguished lawyer—where the expertise offered through DNA can prove either that his client is guilty or that he is not guilty. There is a different judgment to be made by Members of this House from those judgments to be made by lawyers. I say that with the greatest of respect for the right hon. and learned Gentleman, whom I have known for many years, and for what he has said about such issues before the House.
However, the Government’s position—that we should retain the data indefinitely—is indefensible, yet they hung on to it for a long time. They could have created a great deal of good will among their own Back Benchers and the Opposition parties if they had retreated from that indefensible position much sooner. The Government then went for a longer period, which they subsequently reduced to six years. There were differences among those of us on the Select Committee on how long the period should be, but we came to the conclusion—this is set out in the conclusions that we have published today—that a three-year period probably strikes the right balance. We said that the period should not be less than three years—although it could be longer—but that three years was a reasonable length of time. If hon. Members know the personalities of the members of the Home Affairs Committee and their different politics, they will understand that achieving a unanimous report is quite difficult. Consensus is not easy on such issues, but there was a consensus that holding the data for six years was too long.
The Government need to look at that period for the very reasons put forward by the Opposition spokesperson, the hon. Member for Hornchurch. It worries me that the DNA of so many young black men is on the database. That cannot be right. We are talking about high percentages—between 60 and 70 per cent. in some age groups—but Ministers have given no explanation of that. They cannot expect Members of Parliament to go along with more and more of our citizens being put on the database just because of the colour of their skin. I have heard no explanation from the Minister as to why that is happening, nor have I heard about any research that the Home Office intends to commission to find that out. In discussing such issues, it is important that we should know why those things are happening. I raised that point with the Minister on Second Reading, right at the start of our proceedings on this Bill—indeed, I raised it before, when the European Court made its judgment—so he really needs to tell us now. He cannot just say, “Tut-tut, it’s very sad that this is the case, but we don’t know why it’s happening.” Why is it happening? These are matters of fact; they are not even matters of debate.
However, where the Minister has me—that is, where he has made enormous progress and been prepared to listen—is on the issue of innocent people trying to remove their entries from the database once they have been arrested, by writing in and saying, “Could we please have our DNA removed?”
During our deliberations we took evidence from the hon. Member for Hammersmith and Fulham (Mr. Hands). He told us about his experience after the death of an elderly relative whom he had not seen for many years, when, because he was related to that particular woman, the police came and took his DNA. He tried for a year and a half to get some explanation from the chief constable of the west midlands as to whether his DNA was still on the database and when it could be removed. The chief constable appeared before us when we were preparing the report, but he did not know the answer, even though the issue was in the public domain. He wrote to me recently and said, “Very good news: Mr. Hands’s DNA is not on the database.” Why did it take a year and a half, parliamentary questions, and the chief constable appearing before a Select Committee for the hon. Gentleman to get an answer?
That is where the Government’s problems lie. If only there was a much easier, more robust and more defensible way of dealing with the issue, the Government would not be in their present difficulties, with so many on their own Benches worrying about the issue. Those who are innocent should be able to write in, such as Mr. Jonathan Leighton, who gave evidence to our Committee. Why is his DNA on the database? He is a student from Oxford university. A protester had climbed up a tree because the local authority in Oxford wished to chop it down. Mr. Leighton was not involved in the protest, and all he did was to throw a bottle of water up to the gentleman because he was thirsty. He was arrested, and his DNA was put on the database and retained from that moment. If a system were introduced that made it easy for innocent people to write in, the Government would take the House with them on that.
I am delighted that the Minister has looked carefully at this issue, and he has come up with proposals that the Select Committee welcome. I hope he does not think that all our reports always criticise the Government, because they do not. The only bits that the media pick up are our criticisms of Government policy, but the purpose of Select Committees is to be robust so that the Government can do better. Otherwise, we would be like those who sat in the Kremlin before elections were run in the Soviet Union, agreeing with everything that the then Russian Government did. We have to point out to the Government where we think they have gone wrong, and I think that our method of scrutiny is pretty good. We always take evidence from Ministers, as we did in this case from the Minister for Policing, Crime and Counter-Terrorism, my right hon. Friend the Member for Delyn (Mr. Hanson).
My right hon. Friend’s proposals are very welcome. Putting this matter on a statutory footing is the right approach. Innocent people—indeed, anyone—will be able to write in to the proposed body and say, “I’d like my DNA removed.” The body will issue robust guidelines, which is welcome, and there will be others besides police officers sitting on it. The Select Committee has asked to be consulted on the guidance, and we look forward to receiving assurance from the Minister that that will happen. Given the imminence of the general election, it would be nice if that could be done as soon as possible. We would like to do it before the House rises whenever it is going to rise, at the end of March.
The measures will help us to show the public that we are serious about dealing with the DNA of innocent people, and we welcome these important changes. The Minister has certainly answered some of the criticisms that I made on Second Reading, but he still needs to do some work on the time limit. Of course the police are advising him that six years is the right time limit, and that three years is too short a period, but I urge him to look again at this. If the system works, people such as myself will be willing to give him the benefit of the doubt on time limits if we can end the postcode lottery—whereby those living in north Wales, for example, get a better response than those in Leicestershire—and if we can take the power away from the 43 chief constables. If such consistency can be introduced into the system, the Government will have done an enormous amount to deal with the criticisms that have been made since the European Court judgment. I look forward to receiving such assurances from the Minister.
I am always delighted to follow the right hon. Member for Leicester, East (Keith Vaz) who, as usual, has been speaking an awful lot of good sense. I am delighted that his Committee was able to reach a unanimous view on this sensitive issue, and I hope that the Minister and his officials were listening to the points that he raised.
I wish to speak to new clauses 5 to 7, tabled in my name and those of my colleagues. I outlined our position on the DNA database on Second Reading, and my hon. Friends the Members for Carshalton and Wallington (Tom Brake) and for Winchester (Mr. Oaten) did so in Committee. We believe that only the DNA of people who have been convicted of a criminal offence should be on the database. There should be a primacy of the presumption of innocence over guilt. DNA should by all means be taken following an arrest but, if no subsequent conviction is achieved, the data relating to that person should be removed from the database on conclusion of the investigation or criminal proceedings. That should be a simple rule with no caveats, and no ifs or buts: a dividing line between innocence and guilt.
The amendments tabled by the hon. Member for Epsom and Ewell (Chris Grayling) and his colleagues represent a pragmatic compromise. There may be some doubt as to whether a two-year extension period is necessary; it may lead to function creep, whereby all samples are tacitly assumed to be kept for five rather than three years. On the whole, the Scottish model on which the Conservatives have based their amendments is not our first preferred policy, but it represents in our eyes—as one would expect, given that it was introduced in a Labour-Liberal Democrat Administration, in which the Justice Secretary was my esteemed colleague Lord Wallace of the other place—a much more palatable solution than the one proposed by the Government. If the Conservatives press their amending provisions to the vote, we would support them.
The Government have made no fundamental changes to their original proposals. They have made no compromises, although there have been token additions to deal with people convicted of offences overseas and to end the postcode lottery for removal from the database. Some of these are welcome. There should, of course, be a standardised approach to removal from the database and there can be no argument against having proper parliamentary oversight. The ends may not be to our liking, but the means must be as fair and as transparent as possible.
The Government amendments do not change the foundations of their approach to the DNA database, which is little more than a random hoarding of any data that they can get their hands on. The proposals, of course, still fail to address any of the concerns outlined in the European Court of Human Rights ruling in the case of S and Marper v. the United Kingdom about the “blanket and indiscriminate nature” of the database. How on earth can the Government suggest that these measures are “proportionate”, as they are required to be by the judgment?
The UK already has the largest DNA database in the world in proportion to our population, with the records of more than 5.5 million people on it, almost 1 million of whom have never been convicted of any crime; while almost one in two of all black men are on the database. There are real issues about the potentially counterproductive nature of a detection tool that is seen to be quite so discriminatory by ethnic group. It was interesting that the hon. Member for Hornchurch (James Brokenshire) cited the extraordinary difference in the figures for people on the DNA database between the separate nations of this country alone. It becomes even more severe, of course, when ethnic minority figures are taken into account.
The number on the database would surely increase under the proposed system of keeping for six years the DNA of people who have not been convicted of any crime, yet more than 2 million people who were convicted before the database began are still not on it. All we get from the policing Minister is the charge that the Government’s proposals might lead to some convictions, but what about all the convictions that are not taking place because the Government have not introduced an effective system for catching up with people who are convicted, who should be on the database and whose presence on it has the support of every political party?
The effectiveness of the DNA database as a tool for fighting crime is without any doubt whatever. It is important; the police want it; we support it. It is telling that the database is, as the hon. Member for Hornchurch pointed out, clearly set at a point of diminishing returns.
I shall give way to the right hon. and learned Gentleman in a few moments.
The increase in the database is not leading to a corresponding increase in the number of crimes solved. In fact, there has been an enormous increase in the number of profiles held on the database from 2.1 million in 2002 to 5.6 million last year, but the number of detected crimes for which a DNA match was available—never mind whether or not it was pivotal in securing a conviction, which I suspect the right hon. and learned Gentleman is about to raise in his intervention—has fallen from 21,098 to 17,614 last year. Where is the proportionality called for by the European Court in this random accretion and increase in the DNA database coupled with a falling effectiveness and diminishing returns?
Does the hon. Gentleman agree with the proposition that because DNA provides such an important and effective detective tool, it is also in itself a deterrent in that almost any crime involving the physical presence of a person at a scene or someone coming into contact with another person will leave DNA? Is that not a deterrent to the commission of crime as well as a detective tool in the event that crime is committed?
Of course it is a deterrent, and of course any crime scene will be searched for DNA, which will automatically go on to the database and be used as part of the investigation. We entirely support that. However, the right hon. and learned Gentleman’s point is similar to a point made by the Minister earlier. The Minister said that as long as one single case was brought to justice, such action would surely be regarded as sensible. As the right hon. and learned Gentleman knows, that is not a requirement in law. The law requires, and the European Court has spelt out, that measures taken by the state should be proportionate to the objectives of the state and the protection of the public.
Many years ago, before 1989 and the fall of the Berlin wall, I visited the Soviet union. An elderly lady would note all the times at which I went into or left my hotel room. If any member of the Soviet Government at the time had been asked whether that was a proportionate use of scrutiny, the response would have been that those with nothing to hide had nothing to fear, but I do not think—and I hope that the right hon. and learned Gentleman agrees—that we want such an intrusive state. It is simply not appropriate for the state randomly to acquire samples, and then profiles, of something as sensitive and as potentially intrusive into privacy as DNA on the basis of an arrest which may not lead to a conviction, as the person concerned may be entirely innocent.
The evidence provided by the Government to support the retention of the DNA of all innocent people for six years is an embarrassment to statistical science. The so-called evidence in the consultation paper was based on an extremely small sample of research carried out by the Jill Dando Institute of Crime Science, which its own director later noted was incomplete and based on data to which the institute was not given direct access. Further criticism came from none other than Professor Sheila Bird, a vice-president of the Royal Statistical Society, who said that the consultation had damaged public trust in statistics and misled the House. The Home Office really has a lot to answer for.
More recently, confusion seems to have reigned across all fronts. Numbers have been flying around in connection with examples which the Government say prove beyond doubt that the DNA of innocent people should be kept for six years. The Home Secretary tells us that in 36 cases the DNA of innocent people not convicted of any crime was pivotal to the solving of cases involving serious violence and sexual offences. On 19 February I tabled a parliamentary question asking for the details of these cases, but, nearly a month later, I have still not received a response. If the evidence was so fantastically compelling, why on earth is the Home Office unable to provide a written parliamentary answer giving the details?
Some consultation seems to be taking place among the officials. I certainly hope that it is, because in my view it is rather important for parliamentary questions to be answered in advance of debates on legislation. It is a dereliction of duty for the Home Office not to come up with an answer. One would have thought that the Home Secretary would be more than willing to share the information, given that he quotes that figure at every available opportunity. What is the reason for his sudden reluctance?
We have received letters from the Minister for Policing, Crime and Counter-Terrorism claiming to list five cases, but the number turned out to be only four owing to double counting. Another case, that of rapist Jeremiah Sheridan, has been cited by none other than the Prime Minister. In that case, DNA taken following Mr. Sheridan’s arrest for a minor offence in 2005 was later matched to crime-scene DNA from an offence committed in 1991. Nothing in my party’s proposals would prevent that from happening. Under our scheme, Mr. Sheridan’s DNA would have been taken at arrest in 2005 and held on the database until the decision was made not to proceed any further. During that time, officers would have been free to check his DNA for matches against cold-case samples held on the database. A match would have been made, and the original 1991 case would have been solved.
The really shocking aspect of the case of Mr. Sheridan is that the original cold-case DNA sample from 1991 was not uploaded to the database until a staggering 16 years later, in 2007, at which point it was matched to Mr. Sheridan’s. The failing here would not have been to have removed Mr. Sheridan’s DNA from the database when he was not convicted of a crime; rather, it was to wait 16 years to run the cold case data against the information on the database. I do not want to go over any more individual cases—as I have said, the enumeration of them has been singularly lacking from Justice Ministers and from the Home Department—save to say that of the millions of crimes committed each year, the Government struggled to come up with even five concrete examples to support their case.
Of more concern in terms of the evidence the Home Secretary recently told us was being peer reviewed is the Government’s constant conflation of re-arrest rates and conviction rates. I am not going to labour this point, because the hon. Member for Hornchurch made it very tellingly; I simply say that I entirely agree with his comments. The Government have come up with no evidence to convince me, and no evidence that should convince this House, that six years is a proportionate or necessary length of time to retain the DNA data of an innocent person, nor do I believe for an instant that the European Court of Human Rights will be persuaded. Were this sorry piece of legislation finally to reach the statute book, I believe it would be overturned again. Despite the positive aspects of the Bill—the latterly introduced measure to provide compensation to the victims of overseas terrorist offences, for example—Liberal Democrat Members cannot support these proposals, which loom so large over the remainder of the Bill.
I rise to speak to my Committee’s report on this part of the Bill and the amendments in my name that have been tabled on behalf of that Committee.
We have had extensive correspondence with my right hon. Friend the Minister and his predecessors on the retention of DNA, most recently, of course, in light of the Marper case. It might be useful to remind Members of what the Grand Chamber said in that case, because that is the test the Government have to meet in how they approach this issue. The court said that
“the Court is struck by the blanket and indiscriminate nature of the power of retention in England and Wales. The material may be retained irrespective of the nature or gravity of the offence with which the individual was originally suspected or of the age of the suspected offender; fingerprints and samples may be taken—and retained—from a person of any age, arrested in connection with a recordable offence, which includes minor or non-imprisonable offences. The retention is not time-limited; the material is retained indefinitely whatever the nature or seriousness of the offence of which the person was suspected. Moreover, there exist only limited possibilities for an acquitted individual to have the data removed from the nationwide database…in particular, there is no provision for independent review of the justification for the retention according to defined criteria, including such factors as the seriousness of the offence, previous arrests, the strength of the suspicion against the person and any other special circumstances.”
That is the test laid down by the Grand Chamber, and the real question for us today is whether the Government’s proposals meet it.
I am concerned that in the Public Bill Committee the Minister said that the Government would consider the judgment and that the question is now
“how far we can push the boundary of the judgment in relation to our wish to have protection for the public.”––[Official Report, Crime and Security Public Bill Committee, 26 January 2010; c. 71.]
That implies a desire to push against the Grand Chamber judgment, and to see just how far the Government can go. That inevitably risks both future litigation if we are right up against the borderline—or, potentially, on the wrong side of it—and impacting unfairly, unjustly and unlawfully on the rights of many of our fellow citizens if their DNA is retained in circumstances that the Grand Chamber would not find acceptable.
We certainly welcome the Government’s decision to respond swiftly to the judgment in the Marper case, and the proposed scheme reduces the likelihood of DNA samples and profiles being retained in a manner that is incompatible, but we are concerned that proposals for retention, in respect of people who are arrested but not charged or convicted, on the basis of a blanket retention period remain disproportionate and potentially arbitrary.
I am particularly concerned about the question of stigma, which the Government seem to discount, but the Grand Chamber thought was rather important:
“it did consider that the stigma attached…for the purposes of assessing the impact on the individual for the purposes of Article 8 ECHR”
was an important factor. The Grand Chamber said that
“the inclusion of an individual on a list which treated him in the same way as a convicted person, and differently from a person who has never been suspected of an offence, would affect his own understanding of how the State chose to perceive him”.
I think that is important, because about 18 months ago one of my constituents, the mother of Robert Chong, came to see me after her son had committed suicide in July 2008 because of the shame of being put on the database after he was falsely accused of exposing himself to a woman. A cursory check of the CCTV tapes would have demonstrated his innocence; his only interaction with the woman had been when she swore at him on a station concourse. The impact on Mr. Chong was severe—his mother described it to me in some detail. He became withdrawn and he told his mother:
“I’m on the criminal database now, I have got a record.”
Eventually, he committed suicide. Whatever we do today will not resolve that particular case, because he is dead as a result of what happened in relation to DNA retention.
However, the case demonstrates how important the issue of stigma can be if we underestimate what we should do to try to put these things right. That is particularly the case in relation to children. We have separate provisions for them, but the provisions create significant risks of disproportionality. For example, a child convicted of two offences of shoplifting or minor criminal damage at the age of 11 or 12 could have his or her DNA profile retained indefinitely, and that cannot be right. The Government have a particular responsibility to justify the taking and retention of DNA samples and profiles from children. My Committee’s view was that, in the absence of further evidence to support the Government’s position, the proposed retention periods for the DNA profiles of children may be disproportionate and inconsistent with the requirements of the UN convention on the rights of the child.
My Committee is also concerned about the position on the DNA samples of innocent people arrested in connection with minor offences, because the Government make no distinction between arrests for minor and more serious offences. Our view is that the evidence is insufficiently robust to support the Government’s contention. We noted the Council of Europe’s recommendation, which indicates that the retention of DNA samples and profiles will be proportionate—even after conviction—only in the cases of more serious offences. We also noted that the research cited by the Government relates to conviction data and not to the likelihood that a person arrested in connection with a serious crime might subsequently be convicted of another offence of that type. Thus, there is no correlation in the evidence so far between the two—I think that that was the point being made by the hon. Member for Eastleigh (Chris Huhne). Although the Government’s research supports the public protection argument for keeping more people’s details on the database, it does not illustrate that the interference posed to individual rights is proportionate and necessary.
My Committee found it disappointing that the Government have chosen not to draw any distinction between arrests in connection with serious violent and sexual offences, and those in connection with less serious offences. Under the Bill, an individual arrested in connection with the investigation of a minor criminal damage or public order offence will be treated in the same manner as an individual who is charged but not convicted in relation to a serious violent or sexual offence. We consider that that failure is likely to increase the likelihood that the proposals will be considered disproportionate and incompatible when the inevitable challenge later appears.
My Committee was particularly concerned about the provisions in relation to national security, which go way beyond what we think to be appropriate—they go beyond the six-year period. Where a chief constable thinks that something has a national security implication, even when the six-year period has expired the DNA can still be retained, and that can be done without notifying the individual concerned that it is being retained. Our first concern is that there is no definition of what national security is in these circumstances, so my amendment 33 tries to set out what a definition of national security considerations should be. In addition, no provision is made for any oversight of a decision by the chief constable on this matter. My Committee recommends that oversight should be carried out by the Information Commissioner and a DNA reviewer, in the same way that there is a reviewer on counter-terrorism matters, in the form of Lord Carlile, to examine retention that is carried out for the purposes of national security.
We also need to address the oversight of retention decisions. The exceptional cases procedure is in place, under which, if it appears to a chief officer that certain criteria are fulfilled, for example that the arrest was unlawful, that it had been carried out on the basis of mistaken identity, that samples had been taken unlawfully or that any other relevant circumstances applied, the DNA record should be removed. However, the Nuffield Council on Bioethics has recommended that
“an independent body, along the lines of an administrative tribunal, should oversee requests from individuals to have their profiles removed”.
The Government take the view that judicial review would be a sufficient remedy for that, as they always seem to in this sort of case. Generally speaking, these cases will be very fact-specific.
We note from the case of Tsfayo against the UK that in those circumstances judicial review could not resolve a lack of independence. Our view, therefore, is that there has to be a statutory form of appeal should a chief constable not accept that a case falls within those exceptional criteria. I propose an amendment on behalf of my Committee to provide for an appeal to the Information Commissioner and, ultimately, to the Information Tribunal.
Overall, in light of our conclusions, we remain concerned that the Government’s proposals risk being indiscriminate and disproportionate. Without further concrete evidence to support the Government’s argument for a blanket six-year single retention period, there is a real risk that these provisions will lead to further judgments finding the UK in violation of the right to respect for private life. In our view, there are various approaches that could comply with the Marper judgment—for example, the Scottish model, which was described earlier—but we are very concerned that the proposals before us simply do not meet the requirements of the European Court.
This whole question raises some very troubling issues. It is one about which reasonable-minded people can differ quite dramatically. There is a division of opinion. On the one hand—this is the minority view to which I subscribe—DNA is an enormously important deterrent and detective tool, and that being so there is a strong case for a national database including all citizens. On the other hand, there is the view that it is a monstrous and serious intrusion into privacy, and therefore unacceptable. That is an argument that has to be taken into account even if one personally disagrees with it.
I think that we can all agree with the general proposition that DNA taken from crime samples should be retained indefinitely. That goes without saying and is very important. The question that should concern the House is the extent to which the DNA should be retained of persons who have come into the criminal network but who have not been convicted of serious crimes. That seems to me the central issue that the House should be considering.
At this point one is rather driven to first principles. I am sorry that the right hon. Member for Leicester, East (Keith Vaz) is not in his place because he raised rhetorically the perfectly proper question whether it would be right to have a national database embracing the DNA of everybody. That question needs to be considered; it has been articulated by very senior Law Lords in the past. I can speak only for myself. I hope that the House will accept that I am, generally speaking, on the liberal wing in these arguments. Speaking absolutely personally, I would have no objection to my DNA being on a database, albeit I have not been convicted of a criminal offence.
That general proposition has to be subject to three important provisos. One is cost; another is practicality; and the third is public consent. The fact that I personally might have a particular view in the end cannot be determinative of what we as parliamentarians should decide. I am quite plain that at the moment cost and practicality argue against a national database embracing all citizens. It would be immensely costly and very difficult to achieve, and for those two reasons is probably not acceptable at present. In any event—this is the true argument against, which is decisive—there is no public consent for a national database embracing everybody.
One goes to the next question. Assuming that one is not going to have a national database embracing everybody, one has to determine in a pretty unclear way, by pretty unclear criteria, what classes of people who have not committed serious offences should have their DNA retained on the database. We are being asked to fix a time with reference to no very obvious criteria. However, there are some proper conclusions that one can ultimately arrive at. Here, in the end, I agree with my hon. Friend the Member for Hornchurch (James Brokenshire), and indeed the hon. Member for Eastleigh (Chris Huhne).
I am guided on this matter primarily by what I think that the public want, and not necessarily by what I think is the correct conclusion. The public probably want a lesser, rather than a greater, period. If one asked the public in general—if one could ever pose such a question—whether six or three years came within the framework of what they thought proper, in respect of people not convicted of serious offences, they would argue in favour of the shorter period, rather than the longer period.
The public would probably say that the DNA of people who have not been convicted should not be retained. I think that there would be real anxiety were the public fully to understand that, under the Bill, if one is reprimanded or cautioned, one’s DNA will be retained; they might be somewhat surprised by that. Again, using the test of what I judge the public mood to be, and not my opinion, I think that the public would object to that.
I am quite sure that the public would demand much greater ability to remove DNA from the database, and would demand that that ability be national. In my constituency work, I am struck by the way in which it is sometimes easy for a citizen in one police force area to remove their DNA from the database, but not for a citizen in another police force area. I find that extremely difficult to justify.
To conclude, the issue is serious; I am conscious of how important a detective tool the database is, and if it is a detective tool, it is a deterrent—a point that I made to the hon. Member for Eastleigh. Then again, I have to recognise that the fact that I do not find the database intrusive into my privacy or deeply offensive is not determinative. The public have to have confidence in such instruments of policy, and they do not, I think, have confidence in the long-term retention of DNA of persons not convicted of serious offences. For those somewhat narrow reasons, I am driven to support the position of my hon. Friend the Member for Hornchurch, and that adopted by the Liberals.
I hope that this debate is not the end of the matter, in the sense that the subject is one on which the public should be engaged in continuing discussion. If one believes, as I do, that there is a case for longer retention—and perhaps for a national database covering everybody—we should engage the public in that debate. If they will not have it, that is the end of the matter; but they might have it if the argument is fully debated over a period of time, so I hope that this discussion will not be regarded, for years to come, as wholly determinative of the issue.
We are enjoined in both the Old and New Testaments to love justice, seek mercy and walk humbly with our God. An important part of the issue is justice and ensuring that justice is done. There is no doubt that DNA has enabled police forces across the country, through their cold case review teams, to bring to justice for serious offences of murder and rape people who would otherwise have escaped justice.
I was fortunate enough to spend 21 days with Thames Valley police as part of the police parliamentary scheme. I point out to Members of the House who ever have the opportunity of taking part in that scheme that I considered it very worth while. During that time, I spent a day with the Thames Valley police cold case review team, which, on the next day, was about to arrest a man for a rape that had allegedly been committed some considerable time before. I noted subsequently that that resulted in a conviction in the Oxford Crown court. If there had not been a DNA sample, that man would not have been brought to justice and, more importantly, the victim of that offence would not have had justice.
Although the total number of offences in which DNA leads to conviction may be statistically and comparatively small, it can lead to convictions in cases of considerable importance and can ensure that justice is done. I rather take the view of my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg). We all have a national insurance number that we are given when we are 16 or whenever we first apply to start work, which is a unique combination of letters and numbers that stays with us to the day we die. Our DNA profile, as opposed to a DNA sample, is, as I understand it, a unique collection of letters and numbers. I have no problem with the state’s having my national insurance number—of course it must have it—and I do not personally see any problem with its having the letters and numbers of my DNA profile.
The difficulty with this debate, which has been brought forward very clearly by the Select Committee’s report and by contributions made by colleagues from all parties this afternoon, is that there is not public consent to the proposal because there is an understandable feeling, as was evidenced by the rather tragic constituency case raised by the hon. Member for Hendon (Mr. Dismore), that having one’s record on the DNA database means that a value judgment is being made that one either has committed an offence or has the propensity to commit an offence in the future.
There have been occasions when the police have given the impression that although they might not have managed to secure a conviction or a charge on that occasion, they think that the person involved did it and are going to keep their DNA on the database. That, coupled with the difficulties that people have had in having their DNA profile removed from the database, has tended to erode public consent in what the Government are trying to do with this part of the Bill. Perhaps there is a message for police forces throughout the country that when they secure convictions through the use of DNA or when that use helps to lead to convictions, they ought to give that greater publicity. There might not be sufficient recognition of the contribution that DNA can make to solving crimes. There is no consent about the process.
There is an interesting point about the way in which the Bill has gone through the House. We have a Second Reading debate on the principles. We then have the Public Bill Committee, which now takes evidence from witnesses at the start of its proceedings. We took evidence from a number of people but we have now discovered that in parallel to our doing that work and the work of a Standing Committee, the Home Affairs Committee was engaged in carrying out an inquiry and taking evidence on this very specific point. For perfectly good reasons, which were explained by the right hon. Member for Leicester, East (Keith Vaz), the Chair of the Select Committee, it has only been possible for the Select Committee to publish its unanimous report today. I doubt whether Members of the House, other than those who have been in the Chamber this afternoon, will have had the opportunity to know what the Select Committee recommended.
It seems to me that it is crucial for the hon. Gentleman to recognise that on both sides of the House no one is against the national DNA database. The vast majority of crimes that are solved using the DNA database are those in which there is a match of DNA at the crime scene to somebody who is a suspect for other reasons. All that will continue. The real issue, which he is not addressing in his remarks, is that of proportionality and of adding random numbers of people to the DNA database, without that being based on their guilt or innocence. That is the issue. Does he disagree with the European Court of Human Rights that the policy that the Government have been pursuing—and, I believe, the policy that they are also proposing today—would be disproportionate?
May I come to that point in a second? I gave way, but I shall just finish my point about the Home Affairs Committee. I suspect that there are few Members of this House, other than those who are taking part in this debate, who will know that the Home Affairs Committee, in a unanimous report, has said—the right hon. Gentleman did not read out his conclusion, but I think that it is important that it is put into Hansard—that:
“Decisions on retention periods must balance public safety against individual privacy. We are not convinced that retaining for six years the DNA profiles of people not convicted of any crime would result in more cases being cleared up—let alone more convictions obtained—than retaining them for three years. We therefore recommend a three year limit, and a draft amendment to the Crime and Security Bill to this effect is in the Annex to this Report.”
As everyone in the House would, I hope, agree, this is the sort of issue on which it is very sensible to try to get all-party consensus. It would be stupid to ignore the unanimous report of a Select Committee that is tasked with monitoring and scrutinising the work of the Home Office. It is a pity that, through no fault of the Committee’s, only on the last day on which the Bill will be debated in this Chamber do we have the opportunity of reflecting on what it has said. If the Government insist on using their majority to drive through a six-year period, I hope that when the Bill gets to the other place, our colleagues there will reflect on what the Home Affairs Committee has said so that we can try to get some consensus.
In reality, of course, the Bill will not become law unless there is consent across all parties, because of the general election and the wash-up period. That being so, the Government would surely be well advised to consider the Select Committee’s recommendations for the purposes of the wash-up.
My right hon. and learned Friend, who has witnessed even more wash-ups than I have, gives some sensible advice that I am sure will have been heard by those on the Treasury Bench.
Let me come back to the point that the hon. Member for Eastleigh (Chris Huhne) made. I approach this issue in a slightly different way. The whole raison d’être of the Bill was the European Court’s judgment; that is why we are here. If it had not been for that, we would never have had a Crime and Security Bill, and all the other measures in it—from those on mobile telephones in prisons to those on wheel-clamping—some of which are very welcome, would never have been there. An important point that was made in Committee by me and others is that we have to be confident that whatever the Government do in the Bill will be judge-proof. I should have thought that, if anything, that would require the Government to err on the side of caution rather than go for a longer period that could mean that they end up back before the European Court.
Personally, I see no reason why anyone should be concerned about having their profile on the DNA database as long as the practice is applied broadly. I see that costs might discriminate against that, but if costs were not an issue I should not see any reason why we should not all have our DNA profiles on the database. I just do not see, from a human rights or a civil liberties point of view, why that should be a great issue. The state knows our national insurance numbers and many other details, and we now have biometric passports. In what way am I prejudiced by the state knowing that? It becomes an issue only if I think that I am being discriminated against because my data are being retained and my neighbour’s are not. If I think that my information is being retained simply because I am thought to have a propensity to commit offences and because I am therefore thought less worthy than my neighbour or my colleague, of course that will encourage resentment. That point has come through in the Select Committee’s report.
This is a fundamental issue. The hon. Gentleman says that it would not be prejudicial for all people’s DNA to be on the database, but the key principle is surely that the state should not take unto itself powers to intrude on our personal activities unless there are very good and proportionate reasons for doing so, and that case has not been made.
I am not sure that the state’s having my DNA profile would intrude on my personal activities. However, all this is otiose because I think we are of one mind on this point: whatever the Government do has to be judge-proof. The judges are against me on this, because they have decided that there must be more constraints. I am simply making my views clear. The judges have made things clear and I think that it is in everyone’s interest for the House to reach a conclusion that is judge-proof.
Let me summarise the arguments for reducing the period of retention. A unanimous report of the Home Affairs Committee urges the Government to adopt a three-year period. It must be common sense that the general principle of trying to find political consensus is in the best interests of us all. In any event, we are nearing the end of this Parliament and if we do not have general political consensus, the chances of the Bill getting through are limited, particularly because as we all know, the other place will almost certainly side with the Home Affairs Committee, rather than with the Government on the matter. Lastly, public opinion supports the Home Affairs Committee’s position and a three-year limit.
For all those reasons, I hope that even at this late stage, and bearing in mind that the Home Affairs Committee’s report came out only today, Ministers will contemplate accepting the amendments that reduce the period to three years. Sooner or later, they will probably have to do that if they want to get the Bill through, and it might be more sensible to do it now than wait until the wash-up period.
I very much agree with my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), my hon. Friend the Member for Banbury (Tony Baldry) and our Front-Bench team. The new clause is extremely important. Its purpose is to ensure that a limit of three years is imposed, instead of the period prescribed in the Bill.
We are moving towards a general election and the wash-up period. If one were to make an assessment of the progress likely to be made by the Bill, one would conclude it is highly probable that because of the important issues at the heart of the new clause and amendments, the Government will have an opportunity to think again about getting some of their proposals through when the matter goes between the usual channels. The three-year period is something to hang on to. It would mitigate the difficulties that we face in what is increasingly called the surveillance society.
I listened, sometimes with a slight weariness, to the repetitious or at any rate the enlarged deliberations of the hon. Member for Hendon (Mr. Dismore) which were churned out of the Joint Committee on Human Rights. There are some distinguished members on that Committee, but I have the gravest reservations about our legislating simply because the Joint Committee on Human Rights is imbued with the idea that because it has the duty to monitor the Human Rights Act and the European convention on human rights, we should automatically pay special attention to that assumption.
The framework should be decided in Westminster. We are quite capable of deciding for ourselves what the right level is and what is proportionate. After all, most of the democracies in the world—many of the Commonwealth countries and the United States—have worked with us over many generations. We in this House are not so completely aberrant or so witless that we cannot come up with legislation that is in favour of protecting the rights of the individual. In general, we are moving towards a surveillance society and it is extremely important that we do not allow the benefits made possible by DNA samples, which I certainly admit, to intrude on the rights of individuals.
In a very fine pamphlet recently, Peter Oborne and his co-author pointed out that the European convention on human rights was drafted substantially by British lawyers and came under enormous political pressure from this House, precisely because we wanted to establish that sort of British basis throughout the continent, so which of the human rights set out in the convention does the hon. Gentleman desire to remove?
I just do not believe in written constitutions or in the charter of fundamental rights. I believe in the rights of the people, but they should not be entrenched and then adjudicated, in respect of sensitive political matters, by judges who, by definition, are not elected. I had a debate only a few days ago with Richard Gordon QC, who has just written a book called “Repairing British Politics: A Blueprint for Constitutional Change”. He calls for a written constitution, but his idea of constitutional supremacy is, unfortunately for him, dependent on the fact that all the matters in his constitution would be subjected to the European convention on human rights, the European Union and the judgments of the European Court of Justice.
I believe very strongly, and many others in this country would agree, that there are perfectly sound reasons, of which the new clause put forward by my party’s Front Benchers takes account, for disagreeing with the hon. Member for Dismore—[Interruption.] “Dismal” came to mind, but I must not go down that route. The hon. Member for Hendon simply falls back on what the European convention on human rights and the Joint Committee on Human Rights say, but it is not the function of this House to refer continuously to those abstract principles when we are quite capable. Historically, to answer the hon. Member for Eastleigh (Chris Huhne), the fact that the convention happens to have been passed is not a justification for hanging on to it.
I noticed how my hon. Friend let go by the contention of the hon. Member for Eastleigh (Chris Huhne) that everyone was for the convention. In point of fact, it was a highly contentious matter within Attlee’s Government. It was indeed drafted by British lawyers, but there was contention, and it was about a foreign Court adjudicating on matters that had always been at the heart of the responsibility of this House.
I agree with my hon. Friend’s views on proportionality in this case, but the fact is, as my hon. Friend the Member for Banbury (Tony Baldry) said, that we have to make these proposals judge-proof. Whatever my hon. Friend the Member for Stone (Mr. Cash) may think about the European Court of Justice and so on, we have to represent its views so long as its views govern the law in this country on these matters.
Regretfully, that is correct. That is why, when I was shadow Attorney-General, I recommended, and my party accepted, that we repeal the Human Rights Act. For all the reasons under discussion, we must be quite clear about the European convention. Geoffrey Robertson QC, a very distinguished lawyer who, as he said himself, is not a known Eurosceptic, recently made it clear in a very important Standpoint article that we had to review the status of the European convention on human rights, and, as I understood his article, that we should legislate in Westminster to ensure that we strike the right balance in such matters.
This is a very important provision and a very important new clause. The hon. Member for Eastleigh prattles on—if I may be allowed to say so, somewhat pejoratively—about proportionality, but the essence of proportionality is derived from that European convention.
I am grateful to the hon. Gentleman for giving way, particularly as it allows me more time to prattle. He says that he is in favour of repealing the Human Rights Act, and we know that that is his party’s position, but the burden of his remarks appears to be that we should withdraw from the European convention on human rights. Is that what he is advocating?
Order. I am hesitant to intervene, but I am sure that when the hon. Gentleman responds he will relate his remarks to DNA.
In the context of DNA and the potential invasion of privacy, while allowing for the benefits of the system as a whole, length of retention time, public consent and the other parameters that have already been amply discussed by my hon. Friends, there remains a very serious question: what limits should we impose? I strongly believe that we should impose only limits that are consistent with what people in this country want. If they decided in a general election, or as a result of public consultation, that they would prefer to have Westminster deciding these issues and the time limits involved, that would indicate the degree of public consent that we have in making decisions here in this House. Much as I like the hon. Member for Eastleigh, with whom I have debated these issues many times over, God knows, 20 years or so, I strongly believe that in DNA matters, or any other matters of this extremely sensitive character, we should not employ abstract principles that are decided in European Courts but could just as well have been decided by our own courts on the basis of our own legislation. This comes down to the whole question of who governs Britain and what is our role as a Member of Parliament.
The new clauses tabled by my hon. Friend the Member for Hornchurch (James Brokenshire) are very important. I return to the question of the wash-up and the extent to which we stand firm on these questions in the interests of our constituents. Our job is to protect them and to ensure that they get a proper and a fair deal, not an unreasonable subjection to principles of proportionality, or other principles, and a whole series of decisions that come from the Strasbourg Court. Nor do we want to find, as the charter of fundamental rights—the Lisbon treaty—begins to work its way into our legislative arrangements, that we are having to accept those principles.
I repudiate the arguments of the hon. Member for Eastleigh because they are based on abstract principles that are, I am afraid, inherited from a period that has long since gone by. We helped to write and produce the European convention on human rights—and, indeed, the charter of the United Nations—because in those days we were repudiating fascism and the surveillance society that went with it. All that came from our tradition, and that is what we in this House should stick to rather than having a kneejerk reaction in going back to principles that were enunciated all those years ago.
I thank colleagues for a useful and reflective debate on some important and key issues for the House as a whole. We had a long and detailed debate on these matters in Committee. I am grateful to all right hon. and hon. Members who have spoken in this debate for ensuring that those matters came before the House today.
If I can summarise, two clear positions have been stated from the Opposition Front Benches. The hon. Member for Hornchurch (James Brokenshire) said that he supports the three-year period for retention in relation to serious offences, based on the Scottish model. As I said in Committee and repeat today, we have a principled position from the hon. Member for Eastleigh (Chris Huhne), who does not believe that the DNA of anybody not convicted of crimes should be kept. We have heard important contributions from my right hon. Friend the Member for Leicester, East (Keith Vaz), who has brought to bear the conclusions of the Home Affairs Committee. I am grateful to members of the Committee for their consideration of these matters.
My hon. Friend the Member for Hendon (Mr. Dismore) commented on the views of the Joint Committee on Human Rights and has tabled some amendments, to which I shall speak shortly. The right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) made a thoughtful speech that summarised some of the dilemmas that we face in balancing the need to protect our citizens with the need to gain their consent, and in doing so in the legal framework within which we have to work.
The hon. Member for Banbury (Tony Baldry) made the case, in part, for a full DNA database. We need to ensure that that is considered, and there are arguments for it, but the Government have had to take a proportionate view and have settled on the position that is before the House today as meeting our legal obligations. The hon. Member for Stone (Mr. Cash) talked about the primacy of this House in making decisions and expressed what I can only say are long-held concerns about the operation of these matters which are not new to anybody in the House.
There is honest disagreement about the DNA database, and I believe ultimately that the hon. Members for Hornchurch and for Eastleigh are on the wrong side of the argument for the British public. We are trying to ensure that we take a proportionate approach that meets the legal obligations that my hon. Friend the Member for Hendon mentioned and works within the legal framework that the hon. Member for Stone and the right hon. and learned Member for Sleaford and North Hykeham talked about, but that ultimately protects the British public, deters individuals from committing crime and supports the prevention of crime by ensuring that we have a database that is operationally efficient. There is honest disagreement, but I believe that we are proposing a proportionate system and working within the judgments of the Council of Ministers on Marper. We are trying to ensure that the six-year period that we have suggested meets our obligations in a fair and effective way.
I shall speak in due course to Government amendments 8 to 16, in the name of my right hon. Friend the Home Secretary. As I tried to explain in Committee, the Opposition amendments would remove the proposed framework for the retention and destruction of DNA and adopt a variant on the Scottish model. The hon. Member for Eastleigh would have a model that did not allow for the retention of matters relating to the DNA of innocent individuals at all.
I begin with Government amendments 14 to 16. We listened to the debates in Committee, as I hope the hon. Member for Hornchurch and others recognise. Issues that were raised there are partly reflected in the reports produced by my hon. Friend the Member for Hendon and my right hon. Friend the Member for Leicester, East. I will consult my right hon. Friend’s Committee, but we have tried to ensure that we consider both the need for consistency and how individual approaches to the database can be made.
One key issue that has been raised, which is addressed in amendments 14 to 16, is ensuring that we do not have postcode lottery on the implementation of the proposals before the House. In tabling the amendments, the Government decided on a new early deletion procedure, with the National DNA Database Strategy Board being a single point of contact for both members of the public and constituency MPs instead of their having to go to individual police forces. That was a key issue in Committee, and I know that the hon. Member for Hornchurch was concerned about it. I hope that the amendments will ensure that we have consistency across the board in relation to early deletion. Once the board receives a request, the case will be handled by a central team, which will collate the case file, offer advice and consider, based on previous decisions, whether a deletion can be agreed to. If so, it will arrange for it to be implemented.
Amendment 14 will place the responsibility for those arrangements on the board, which, as the House will be aware, has existed since 2007. It will oversee the operation of the database and technical standards in relation to DNA. The board’s core membership will be drawn from the Association of Chief Police Officers, the Association of Police Authorities and the Home Office, but it will include independent elements such as the Information Commissioner, the forensic science regulator and the National DNA Database Ethics Group.
Government amendment 14 will also mean that chief police officers in England, Wales and Northern Ireland must follow that guidance. It is crucial that the removal process is consistent, and I hope that the House welcomes that amendment.
On Government amendments 15 and 16, we listened to what was said in Committee with regard to parliamentary scrutiny over the board and the reports it produces. I thank the hon. Member for Hornchurch for raising that in Committee. Again, I believe that there is now a consensus to amend the Bill to allow that parliamentary scrutiny of the board.
Ultimately, there is a disagreement between the Government, and the Conservative and Liberal Democrat Front Benchers on these matters. New clause 1 and associated Opposition proposals return us to the fundamental questions of the length of time for retention, and whether we achieve a balance for the protection of the community at large with the Government’s proposals or with the Scottish model, as the hon. Member for Hornchurch proposes.
We believe that we have the evidence and the support, that we meet our legal obligations and that the six-year retention period—regardless of the seriousness of the offence for which a person has been arrested—will lead to the prevention of crime, and ultimately and accordingly to the solving of crimes. That is important, and we have taken that view very strongly. As the House will know from discussions in Committee, we believe that rapes, murders or manslaughter cases in England and Wales have been matched to the DNA database and the DNA profiles of individuals who have been arrested but not convicted of any crime.
I say to the hon. Members for Hornchurch and for Eastleigh that it is an issue of proportion.
The hon. Gentleman will have an answer to his parliamentary question as quickly as possible, but we need to check the information for him to ensure that what I say in the House is correct. However, in 2008-09, 79 rape, murder or manslaughter cases were matched to the DNA database, and 36 were found to have a specific and direct value to those investigations.
The hon. Gentleman is making it up as he goes along. I have told the House that I will respond to his parliamentary question in due course. When I do so, I want to ensure that I check that the information in my answer is sufficient to answer his question. I am telling House today that 79 rape, murder or manslaughter cases in England and Wales were matched to the DNA database, and that 36 were found to have a direct or specific value to those investigations.
Do not just listen to me. The president of ACPO, Sir Hugh Orde, has said that he believes that the database is of value in helping to secure criminal convictions, preventing crime, and in ensuring, as the right hon. and learned Member for Sleaford and North Hykeham said, that innocent people are acquitted of crimes, as they are on occasion. There is an honest disagreement between the Government, the Conservatives and the Liberal Democrats, which I suspect will be tested in a Division very shortly.
My hon. Friend the Member for Hendon proposes new clause 9, which forwards the underlying principle of independent oversight. As he is aware, we have given a commitment to look at the creation of an independent oversight role on such matters, which we are doing. I cannot accept his proposal today, but we are aware of the need for such oversight. We are considering whether to introduce amendments in due course to meet those obligations.
The Joint Committee on Human Rights is also behind proposed amendments 35 to 42, which would substitute the Government’s proposals for a Scottish model. My arguments on that relate to those I made to the hon. Members for Hornchurch and for Eastleigh. We have had to make judgments on these matters, and I believe we have made them in support of crime prevention. I commend the Government amendments, but I ask the hon. Member for Hornchurch to withdraw his proposal, because I believe that it is not in the interests of the prevention of crime. The Conservatives are on the wrong side of the argument, and I hope the House rejects the hon. Gentleman’s proposals should he not withdraw them.
We have had an interesting debate on this important subject. The framing of today’s debate with the publication of the Select Committee’s report has been helpful in highlighting some of the issues, which were raised by the Chairman. It is interesting to note that the Committee did not support the Government’s approach to the six-year retention period. The Committee believes that that is too long—much of the other evidence supports that—and argues for a three-year retention period. I note the points that the right hon. Gentleman made about the disproportionate impact on minority communities, and we will need to maintain our focus on that issue.
I respect the approach taken by the hon. Member for Eastleigh (Chris Huhne) and the purity of his logic, although we see the need for pragmatism in striking the balance between the interests of citizens and protecting them from the risk of crime. I support the points that he made about the evidential approach that the Government have taken and the holes in their analysis.
The hon. Member for Hendon (Mr. Dismore) set out clearly the problem of stigma that can occur in relation to the retention of a DNA profile and the impact that that might have on an individual. That stigma has been rightly highlighted in several cases, and the House will be concerned by the individual case that the hon. Gentleman brought up this afternoon and the tragic circumstances involved.
My right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) makes the case in relation to a universal database, although I would mention the issues of cost and practicality. I take a different view when it comes to the benign nature of the state. I do not agree with the universal approach, but I do agree with my right hon. and learned Friend about the need for DNA forensics and proper cold case databases so that information can be matched speedily and effectively. It is an important detection tool, and he also mentioned the deterrent effect. Crime scene forensics and DNA records must be retained, so that they can be matched against DNA profiles taken on arrest for unconnected offences.
My hon. Friend the Member for Banbury (Tony Baldry) highlighted the issue of justice, and that is why we support the use of DNA forensics in the detecting of crimes and bringing perpetrators to justice. That overlaps with some of the points made earlier in the debate, but I am clear that the use of the DNA database should be for the detection and prosecution of crime and for no other purpose. A universal database of the kind that my hon. Friend suggests would be disproportionate, for reasons of cost and security. The Government do not have the strongest of records when it comes to keeping information safe, and that would be even more of an issue if the database were to be extended as my hon. Friend suggests.
I appreciated the support of my hon. Friend the Member for Stone (Mr. Cash) in making the case for the basic period of three years and about the primacy of Parliament. He mentioned his concerns about the surveillance society, which is a wider issue albeit connected to several of the contributions we have heard in this debate.
I acknowledge some of the changes that the Minister has made following our discussions in Committee on oversight and the scrutiny by Parliament. He has also recognised the need to be able to take samples from visitors from overseas should it be discovered, once they are here, that they have committed serious offences overseas. I welcome the changes that the Minister has brought forward, but I return to the issue of balance and judgment. We must take a proportionate approach to the retention of DNA records for those who have never been convicted of an offence. We must respect the basic principle that someone is innocent unless proven guilty, and we must not discount the stigma that can be attached to someone if those principles are breached. Therefore, I wish to test the opinion of the House on new clause 1, and see whether we do in fact respect those fundamental principles that I and my colleagues hold dear.
Question put, That the clause be read a Second time.
New Clause 3
Alcohol disorder zones
‘(1) The Violent Crime Reduction Act 2006 is amended as follows.
(2) Omit sections 15 to 20.’.—(James Brokenshire.)
Brought up, and read the First time.
We turn now to an area of policy and law that is very different from that of DNA retention, which we have just debated. We shall now discuss provisions to control alcohol licensing and try to address the problems resulting from late-night drinking that many of our communities experience, including the costs borne by the police and local authorities in dealing with binge boozing. The first question to ask is whether there is a problem, and I think that we can all say from the complaints that we receive from our constituents that the answer is yes, and that the costs of dealing with it are increasing.
A couple of weeks ago, I had the privilege of spending an evening on the streets of London with paramedics from the London Ambulance Service’s booze bus and officers from the Metropolitan police’s clubs and vice unit, whose duty is literally to pick up the pieces resulting from a night of drink-fuelled excess on the streets of the capital. I said that it was a privilege to do this; it was not a privilege to see some of the scenes that I saw that night, but it was a privilege to see the professionalism, dedication and sympathetic approach that those professionals brought to bear when dealing with the problems associated with late-night drinking. I saw some of the physical situations that people—principally, but not exclusively, young people—got into, along with their need for medical help and the crime issues that arose from their behaviour. That was a real reminder of the continuing problems of late-night drinking that affect many of our communities, and of the pressures that are placed on our emergency services into the early hours of the morning.
In the context of our new clause, which proposes the deletion of certain provisions on alcohol disorder zones in the Violent Crime Reduction Act 2006, it is relevant to reflect on the cost of these problems to society as a whole. The continental-style café culture that was promised when the Licensing Act 2003 was introduced was certainly not evident during my time spent in the centre of London, which lasted into the early hours. It is also far from evident in the many communities blighted by drink-related nuisance and violence, and by self-inflicted health issues, especially for those whose night on the tiles ends up being a night on a stretcher in the local accident and emergency department.
I was told during my visit that the London Ambulance Service handled about 60,000 alcohol-related emergency calls last year. I was given the leaflet that is given to every person whom the service assists, which informs them that every 999 call-out to someone who has had one drink too many costs about £200. That figure does not take into account police costs, or the other costs linked to clearing up the mess and dealing with the nuisance directly attributed to binge boozing. There is clearly a financial hangover that all of us are having to bear.
The costs of alcohol to society are becoming ever clearer. Between 2004-05 and 2008-09, the number of finished admissions of patients with an alcohol-related diagnosis increased from 644,000 to 945,000—a rise of about 47 per cent. Alcohol was a factor in almost 42,000 cases of children under 18 being admitted to English hospitals in the past three years, and figures from the Office for National Statistics show that the number of alcohol-related deaths has increased by 47 per cent. since 1997. Young people are drinking twice as much as they did in 1990. Last year, there were 973,000 violent attacks in which the offender was under the influence of alcohol, and 57 per cent. of all assaults involving minor injuries are linked to alcohol.
It is in that context that the Government proposed their solution to the problem: the alcohol disorder zone. That measure was so complicated and unwieldy that it took three years to implement it, and it took three goes at getting the relevant statutory instrument right in order to bring it into law, nearly six months later than the powers were said by No. 10 to have been brought into effect.
What has happened since the alcohol disorder zone regime was introduced? The shadow Home Secretary asked the Home Secretary in a parliamentary question how many alcohol disorder zones had been enforced, and the simple answer was:
“There are currently no Alcohol Disorder Zones (ADZs) in place. ADZs came into force in June 2008 and the Home Office has been clear that an ADZ should only be used as a measure of last resort, after all other tools and powers have been tried.”—[Official Report, 9 February 2010; Vol. 506, c. 905W.]
They are clearly such a measure of last resort that no one has used them at all.
What went wrong? It is worth considering what was said when the measures were introduced. The House of Lords Merits of Statutory Instruments Committee noted that:
“Although the policy is optional, given its complexity we wonder how many local authorities will actually take it up, and we draw the Regulations to the special attention of the House on the ground that they may imperfectly achieve their policy objectives.”
The Local Government Association, representing the councils that were supposed to benefit from this additional measure in their toolkit, stated that it had
“serious misgivings about this policy”,
and noted that
“ADZs will prove to be a costly, complicated and unwieldy tool for local authorities, particularly the costs involved in preparing and implementing an ADZ and the additional burdens involved in attempting to recover these costs.”
The Local Authorities Co-ordinators of Regulatory Services warned that local authorities were
“likely to be open to all sorts of challenges e.g. from challenging the level of intervention tried before considering an ADZ designation; down to challenges over exemptions and discounts. It seems highly unlikely that this piece of legislation will ever be used.”
Despite those siren voices, however, the Government carried on regardless.
The reticence to bring in an ADZ is perhaps a reflection of the fear that doing so might make matters worse by increasing the perception of crime and abusive behaviour in an area. The way in which the measure works involves a formal consultation process and the designation of an area as an ADZ. In so doing, it might be felt that attention is being drawn to the fact that it is a problematic area. I can understand the reticence shown by local authorities that do not want to say, “Our area has a problem, and it is an alcohol disorder zone.” That might explain the unwillingness to come forward and implement the measure. This should have been taken into account when considering whether the process would be usable.
The risk of displacement must also be taken into account. Once an area has been identified as an alcohol disorder zone, problems could simply be displaced to other areas in an unmanaged way. ADZs could also earn the badge of being a magnet for trouble, and designating an area an ADZ could make matters worse if that happened. There is also an assumption that problems can be confined to one area without properly taking account of problems such as the pre-loading of alcohol. Alcohol that led to troublesome or violent behaviour could well have been consumed in the home or at a different location outside the designated zone in which the problems occurred.
It is also a matter of the associated bureaucracy, as there has to be an assessment of the cost of baseline services in the area in question, which is unlikely to fit neat boundaries. Another problem is the unrecoverability of charges under the preliminary action plan stage that needs to be gone through before a local authority is able to designate an area as an alcohol disorder zone, which it must do before being able to charge licensed premises in that area to meet the costs assessed under the action plan and under the baseline assessment.
If we consider the issues of stigma, bureaucracy and all the costs that local authorities will have to bear in seeking to introduce an ADZ, it is not too surprising that no one has bothered to introduce one. As we pointed out at the time, the reality is that ADZs are unwieldy, unworkable and unwanted. In large measure, they are a back-of-an-envelope solution to a complex problem and simply will not deliver any change to the problem of alcohol-fuelled crime, over which the Government have presided, which occurs principally in the early hours of the morning. We will discuss later other provisions in the Bill that are designed to control licences for the sale of alcohol in the early hours of the morning.
In many ways ADZs have been overtaken by events, leaving huge scope for uncertainty and legal challenge. In my judgment, as I said at the time of their introduction, they represent poor law, which does this House and this Government no credit. The irony is that, apparently, the Government are still considering their use. We have learned that there are road shows going around to remind local authorities of their various powers to control alcohol and of the wonders that are these alcohol disorder zones. There has even been some suggestion that the Government might look to modify the regulations somewhat, by subjecting them to further fine-tuning. Frankly, I think that that is a waste of time and resources on a failed idea. The proposal to tinker with the drafting in the vain hope that it will have councillors beating a path to Marsham street, clamouring to become the first recipient of an ADZ are, in my judgment, somewhat far-fetched. It is simply not going to happen.
Instead, the Government would be better advised to look at a different approach to seeking to recover the hidden costs attributed to the late-night economy. Rather than looking at a zone or geography, they would do better to think about the operating hours themselves. If an off-licence, bar or club wishes to remain open beyond a specific hour, a cost or levy should be attached to that. Equally, in the interest of better government, deregulation and the desire to keep the statute book uncluttered, we believe that it is time for the Government to admit the policy disaster zone that ADZs have always been. That is why we would repeal the relevant sections of the Violent Crime Reduction Act 2006, to which the new clause would give effect.
Amendment 23 covers a slightly different point. The Government are seeking to introduce measures to give local authorities a right to ban licensed premises from opening between 3 am and 6 am. The basis for that approach is in part to cover some of the problems associated with the late-night economy that I have already highlighted. For example, the police are under increasing strain in the small hours of the morning dealing with alcohol-fuelled crime, while the hard-working staff of A and E departments literally have to pick up the pieces of drink-fuelled excess.
The Government have known about those issues for around three years, but until now, they have done absolutely nothing about them. In the Home Office document, “Violent crime, disorder and criminal damage since the introduction of the Licensing Act 2003”, which was published in July 2007, rising levels of criminal damage were indicated, with the report stating:
“The number of offences happening between 3.00 am and 6.00 am were consistently higher in each of the four three-monthly periods after the introduction of the Act compared with the equivalent periods in the previous year.”
The study noted a 22 per cent. increase in all offences committed between 3 am and 6 am. This evidence of offending was also drawn to our attention in the Department for Culture, Media and Sport’s evaluation of the impact of the Licensing Act 2003, which was published in March 2008. It stated:
“Violent crime occurring in the small hours of the morning has grown”.
Until very recently, the Government thought that these problems had absolutely nothing to do with the Licensing Act itself. As recently as January this year, the Home Secretary was quoted as saying that 24-hour licensing was “not the problem”. Yet we now have measures in the Bill to stop 24-hour licensing if a local authority considers it necessary for the promotion of the licensing objectives, comprising the prevention of crime and disorder, public safety, the prevention of public nuisance and the protection of children from harm.
Relevant to this specific amendment was the press release of the Department for Culture, Media and Sport of 4 February 2010, which stated:
“Councils would need to show that the restriction was necessary to prevent crime and disorder or public nuisance or to promote public safety.”
The question is, what obligation does this place on councils? Is it to happen if they consider it necessary, or does it need to be demonstrated with objective evidence? Judging from the Minister’s response in Committee, certain objective tests would have to be satisfied so that a local authority would have to hit a particular hurdle to be able to introduce these measures in the first place. Given that 24-hour drinking was, apparently, not the problem in the first place and given the issue of whether drinking occurs before the 3 am deadline mentioned in clause 55, it might well be difficult for a local authority to make the necessary demonstration.
Information about the number of outlets open at this time in the morning is also important. When an assessment was made by the Department for Culture, Media and Sport in March 2008, it found that about 5,100 premises had 24-hour licences. It then becomes a question of how we break that down in respect of demonstrating the problems that a local authority would need to have in order to meet the hurdles prescribed in the Bill. Of that number, about 3,320 were hotel bars, which have always been able to serve their guests alcohol for 24 hours; 920 were supermarkets and stores; and 470 were pubs, bars or nightclubs. That offers a slightly different flavour and different context to the issue, particularly when the DCMS said of those 470 pubs, bars and nightclubs that had 24-hour licences that “only a handful” operated on that basis. If it is only a handful, and if this legislation is intended to be directed at that handful, it seems that local authorities will have a devil of a job trying to meet the hurdles that appear to be put before them.
If we consider the statutory regulations that might sit behind the Bill should it come into law, we have certainly seen in the past that such regulations have tended to fetter rather than help local authorities in exercising such discretion as they may have in respect of the application of licensing laws. I certainly do not place too much hope in having regulatory guidance in place to sit alongside the Bill that would help to provide the assistance or comfort that local councils or local authorities need to utilise the very power that the Government seem to want to give them ostensibly to assist them in the management of the problems that occur in the small hours of the morning. It comes back to the fact that the problems themselves are likely to have been caused much earlier in the night. Would it not be better to ensure that local authorities have a much stronger ability to set closing times and have the very discretion promised to them when the Licensing Act 2003 was brought into effect?
Through the amendment, we are seeking to be helpful by explaining what discretion might be applied by councils in the utilisation of the Bill’s powers. We want to ensure that communities have a stronger say when it comes to licensed premises that are opening in the small hours in their areas.
It is clear from what I have seen on the streets of London and elsewhere that serious problems are involved. The emergency services are being pressed at a time when there may not be enough police officers, paramedics and medical staff on duty to deal with those problems. I think it incumbent on the Government to ensure that this measure is used, otherwise we will be back where we were with alcohol disorder zones. We will end up with a measure that will not make the difference that our constituents want to see by dealing with the binge drinking, and the alcohol-fuelled violence and crime, that blight far too many communities throughout the country.
I hope that the Minister will reflect on the spirit in which the amendment was tabled, and will try to ensure that this power can be used. I must caution him that, as currently drafted, the clause will go the same way as the alcohol disorder zones: a power that was intended to benefit communities and local authorities will never actually be adopted.
Although alcohol misuse was discussed at some length in Committee, I feel that more time should have been devoted to an issue of such importance. I realise that this is a catch-all Bill containing many valuable provisions that require a full airing, not least those that we have discussed today and those on which I hope to speak later, but alcohol misuse is a huge problem.
For most people a social drink is something to be enjoyed moderately as one of life’s pleasures, but sadly, for a host of reasons, it is misused by all too many. Alcohol is a substance that can indeed give pleasure, but its potential for harm and damage is phenomenal. In recent years the all-party parliamentary group on alcohol misuse, of which I am vice-chair, has taken evidence from a variety of organisations, which has made clear to us the damage done to individuals and communities.
I fear that alcohol misuse is one of those cultural issues that may be peculiar to northern Europe. We seem to have a fascination with alcohol that goes beyond enjoyment of a pleasurable evening. It represents almost a rite of passage for our young people, although unfortunately in the case of some the rite of passage continues into their forties, fifties and sixties. It appears to be almost compulsory for people to go out in the evenings and drink not just in accordance with their own capacities or even to excess, but way beyond that to a point at which problems arise. Those problems may be social—it may be a case merely of upsetting people—or they may involve violence and acts of wanton criminal damage. There may be incredible violence against other individuals, and it all seems to be fuelled by people’s inability to know where their alcohol limits lie.
That is a shame, because the overall rate of crime is falling and, according to the independent crime figures, the chance of becoming a victim of any type of crime is lessening. However, because our television screens are full of programmes showing horrendous alcohol-related acts of violence against property and persons, the perception of crime is still very high and continues to be at the top of most people’s agenda. I am sure I speak for all Members when I say that that is made clear to us both in our constituency surgeries and when we are out and about talking to our constituents from day to day. Most people associate the sight of someone on a street corner drinking a can of beer during the day with a heightened fear of crime.
In the context of the Bill and in a wider context, we must recognise that alcohol misuse is a cultural issue. There has been a welcome attempt to introduce, with the best of intentions, a café culture featuring the relaxed attitude that our southern European neighbours seem to adopt. That was an admirable aspiration on the part of the Government, but it should be set against our northern European culture. We know of the history of great halls where people sat around drinking to excess, and when we travel across the water we see that some of our near neighbours have huge problems with alcohol misuse. There is no particular reason for me to pick on poor Norway, but despite its high alcohol prices, it has problems with alcohol misuse. The issue of prices was raised in Committee, but we need only travel the short distance to Norway to see that that approach will not work on its own. We must explore all manner of ways of addressing the cultural issues, which is what the Bill does.
I am sure that we have all seen posters in our communities describing the impact that alcohol misuse can have on individuals. Staffordshire police and Stoke-on-Trent city council have extremely good posters highlighting the ways in which it can affect people, not least the possibility of ending up in a police cell for the night—quite apart from what happens to the victims of alcohol-related crime.
The hon. Member for Hornchurch (James Brokenshire) spoke of his experiences on the streets of London with members of the police and paramedics. Like, I suspect, many other Members, I too have been out with the police, and with what was the West Midlands ambulance service and is now the Staffordshire ambulance service. I have been to the constituency of my good and hon. Friend the Member for Stoke-on-Trent, Central (Mark Fisher).
Hanley is a popular night spot on Friday and Saturday nights and, indeed, at other times, with various pubs, clubs and entertainment venues in and around the city centre. I have observed the work done by paramedics there. In an extremely effective pilot exercise, a MASH-style tent was set up in a car park just outside the city centre. Rather than being taken to the accident and emergency department at University Hospital of North Staffordshire, people who had had too much to drink and had injured themselves—or, more worryingly, had had too much to drink and injured others—could be taken to the tent for treatment.
I was most impressed when I talked to the dedicated people who worked late shifts on Friday and Saturday nights, and saw the work that they did. I was interested to learn from them that things generally did not begin to hot up until 2 am at the earliest. It was at 3 am, they said, that problems really started to come to their attention. Until then, crews were dealing with other issues and getting themselves ready. As I saw for myself, as the night progresses, things go from fairly slow to very busy indeed.
On patrol around the city centre with the Staffordshire constabulary, I saw the problems caused by people coming out of nightclubs. The introduction of staggered times in other parts of the country has proved very effective. For a number of years, members of the police force who asked for it before the change in the legislation have been telling me how welcome it has been. That staggering—if the House will pardon the pun—is better than everyone leaving clubs at the same time.
As we travelled around, the police would point out certain clubs—I will not name names—and say, “This one is particularly well run; there are good door staff, and they make sure things are run properly,” or, “This one is less well run; we know we’ll be called out to it several times in the night, because there will be problems.” As we went around, it became obvious that the police knew their patch intimately. They knew exactly what to expect, particularly on a Friday and Saturday night, and which premises they would have to visit. As we have an excellent police service in Staffordshire—and north Staffordshire—its officers were pro active. They went out and talked to the door staff, and identified early on where there were going to be problems. Again, however, the police service knew that those problems were likely to escalate from about 3 am onwards—and that was, indeed, the case.
Let me now move from the constituency of my hon. Friend the Member for Stoke-on-Trent, Central to my constituency of Stoke-on-Trent, South. I have been out with the response team there. Again, I travelled around with them in their cars and we were called to incident after incident. I want to pay tribute to all the officers, in particular those from Longton police station. It is one of the busiest police stations in the entire Staffordshire area, and its officers do a marvellous job. Having been out on duty with them, I can attest that the early hours of the morning is the period when the volume of calls goes through the roof, and they find that they are out responding to a stream of incidents. Many of them, especially after 3 am, were alcohol-related, as they had told me they would be.
I know we will come on to the issue of domestic violence later, but that is often fuelled by alcohol. Officers know that, come 3 am, they will be called to domestic violence incidents, and they will frequently be at the same addresses. They also know in advance that many of them will have arisen because alcohol has been consumed throughout the evening, which has resulted in things coming to a head early in the morning.
I have also been out with the Operation Sanction van as it tours around the constituency. It is an extremely good operation. It has been run over many months, going out and identifying hot spots where there is drinking—and especially under-age drinking—late into the night that is causing trouble, nuisance and a great deal of distress for constituents. That police operation was extremely good, and very well received by residents.
Turning to the experience of residents, I listened intently to the remarks of the hon. Member for Hornchurch (James Brokenshire) on local authorities’ use of the raft of powers at their disposal, such as the designation of an alcohol disorder zone. Local authorities are sometimes hesitant to use these powers, and there is a whole host of reasons for that. It is not necessarily that things are complex. I have seen evidence that Stoke-on-Trent city council was hesitant in respect of using section 13—of the Criminal Justice and Police Act 2001—notices; it required the police to fill in reams of completely unnecessary paperwork. Fortunately, over time—and with intervention from the then elected mayor, Mark Meredith, working closely with the police and his own departments in the city council—that process was streamlined so that when section 13 notices were required, they could be brought in extremely quickly. The cause of such hesitancy among local authorities is not necessarily that things are bureaucratic or particularly burdensome. Often, they are simply hesitant to use a power until they have used it. That is human nature, of course; until any of us has actually done something for the first time, we are hesitant about doing it.
In terms of late-night drinking, late-night opening and alcohol disorder, there are some interesting proposals on charging organisations. There is an issue in respect of organisations—clubs, bars, pubs or hotels—that are located in areas that might be hit by the proposals, however. Some of them will be extremely well run and will take their responsibilities extremely seriously, but even though they are behaving in a highly commendable fashion and the cause of the problems lies elsewhere, they might be penalised by having to meet charges for policing and pay the local authority. The cause of the problems might be that other pubs or clubs are not so well run and are not taking their responsibilities seriously or, as the hon. Gentleman said, that people have pre-loaded—they have started their night out before they even go out. Some people go to the local off-licence or supermarket and buy in very strong beer and other alcoholic drinks, and then get half-cut before they even step out of the front door. We might stop off-licences and supermarkets selling some of the full-strength beers; perhaps we should allow only pubs to sell beverages of such a high alcohol content. That might have the knock-on effect of getting folks back into the pubs, instead of drinking at home or on street corners, as is, unfortunately, often the case. We also need to look at how to ensure that supermarkets and off-licences share the costs that the pubs, clubs and hotels may well end up having to pay.
In Committee, in response to proposals of mine, Ministers kindly responded on the issue of designated public protection orders. That ties in closely with the alcohol disorder zone issue. In responses in Committee on 23 February 2010, the Government set out where they felt the designated public protection orders, as they relate to alcohol, could meet the concerns of local residents. They might meet them in particular when tied to the use of petitions in respect of the duty on petitions under the Local Democracy, Economic Development and Construction Act 2009. I hope that when my hon. Friend the Minister comes to respond, he will be able to give some clarification on the public using that petition duty under that Act.
I would also like to hear a little about the late-night alcohol licensing limits—closure between 3 and 6 am and the 2009 Act. In situations where a local authority has not sought pubs and clubs to close between 3 and 6 am in a certain area, will the public be allowed to use petitions to require them to seek closure? Another concern that has been raised is that the general public do not feel that their voice is heard, particularly in respect of alcohol misuse and the ability to have premises closed where they feel they are operating without any due respect for the local community in which they operate. I hope my hon. Friend the Minister will be able to give me the clarification I seek about designated public protection orders and alcohol misuse, and also about late-night licensing closure orders between 3 and 6 am so that the public feel they have a say on that.
Sadly, the issue of alcohol misuse and the cultural implications of our northern European nature will take a long time to address. We can do a lot through legislation, but a lot of it is also about effecting culture change and changing the idea that people do not have a good night unless they cannot remember it. We need to make sure we address these issues, and I welcome any proposals that add tools to the toolbox of local authorities and the police, to help in addressing this important issue.
I am pleased to follow the hon. Member for Stoke-on-Trent, South (Mr. Flello), who speaks a lot of good sense on this issue. Let me first deal with amendment 23. The Government’s introduction of the new power for local authorities confirms that the Government have failed to get a grip on the culture of binge drinking. I agree with what he has been saying about the fact that doing so is complex, but it is key if we are to deal with the associated crime and disorder, as any of us who have been out on a Friday or Saturday night with our local police force will be able to testify. The new alcohol provisions in the Bill give local authorities the power to impose blanket bans on the sale of alcohol after 3 am, but to do so on the basis of a justification that such a ban is “necessary”. The amendment proposed by the Conservatives would change the wording to “desirable”, and the Liberal Democrats would have no problem with that. Although there are no longer statutory limits on this under the licensing laws, in theory local authorities—licensing authorities—can curtail hours of sale to prevent crime and disorder, for public safety reasons, to prevent public nuisance and to protect children from harm. This provision is a reinforcement of the powers available to local authorities. We can see that in certain circumstances it might be useful, and we therefore support it.
New clause 3 would, in effect, abolish alcohol disorder zones. It is clear that they were another example of the Government governing by press release without considering what local authorities really wanted or needed to tackle the problems that they face. The fact that no local authority has applied to create an ADZ tells us everything we need to know about the effectiveness of this particular legislation.
Does it not surprise the hon. Gentleman that the Government never held any proper consultation with local authorities in order to discover whether this was a power that they wanted? Does not one usually ask people whether they want a power before one announces that the power is to be given to them?
The right hon. Gentleman is right to say that in a rational, well-ordered world where Ministers were doing things in the correct way one might well suppose that a consultation process would be a good start to make before the drafting of legislation. However, as he may well have heard me say before, we have had 67 criminal justice Bills and nine immigration Bills since 1997, and 3,400 new criminal offences have been created, and the way in which the Government operate on these matters is to use legislation as a glorified press release, rather than as something that will have a little longer shelf life. The ADZs are another example of that playing to the gallery, and as the Liberal Democrats are very much in favour of removing legislation that is completely unnecessary, we will support new clause 3.
This has been an informative, if short, debate, in which there has been some agreement and some disagreement about whether these proposals deserve the support of the House. First, may I pay tribute to the work of and comments made by my hon. Friend the Member for Stoke-on-Trent, South (Mr. Flello), who spoke authoritatively this evening, as he did in Committee, in a fair and balanced way? He demonstrated again—as if he needed to—why he is such an assiduous constituency Member of Parliament. He highlighted the problems in his area and pointed out the significance of alcohol in our culture, both negative and positive. He also highlighted the way in which MPs are able to involve themselves in these important matters for their constituents—I am sure that applies to most hon. Members in the Chamber this evening—and see at first hand the problems that prevail.
If the House will allow me, I will answer directly the two points that my hon. Friend made before I deal with the broader points raised by the hon. Members who lead for the Opposition parties in this area. My hon. Friend asked whether the public can influence decisions on late night orders. He may be aware that at the end of January we introduced the right of local councillors to act as interested parties, and nothing would prevent Members of Parliament from acting on behalf of residents in raising these matters.
My hon. Friend asked a specific question about petitions. I am able to confirm that where a petition is presented it could be used as the basis for a designated public place order and that local authorities are required to consider a petition under the Local Democracy, Economic Development and Construction Act 2009. I hope that that gives him some reassurance.
I wish now to discuss the wider point. Let me first state that there is a degree of common view—if not unanimity—about the fact that alcohol does create problems in our local communities and that we need to tackle the problems robustly. We need to be tough, but we also need to recognise that no single measure that can be introduced will act as a silver bullet. We have to put into context the powers that have been introduced and how they have been used to date, because the reality is that the level of alcohol-related crime has fallen by a third since 1997. We are not complacent; we are determined to take action to reduce the level of alcohol-related crime and disorder further, particularly when it involves binge drinking and under-age drinking. Of course we want to minimise the violence, antisocial behaviour and health harms that come with the abuse of alcohol, but we also want a balanced approach that allows the law-abiding to go about their business and to enjoy alcohol safely and responsibly. We have introduced a host of measures, including ADZs, that have a role to play, but the reality is that 28 per cent. of the population perceive that alcohol-related disorder is either a fairly big or big problem in their area.
I very much agreed with the Minister’s point about the importance of cutting alcohol-related violence. Could he tell the House what the Home Office is doing to ensure greater co-operation between accident and emergency departments and local police forces to give anonymised patient data allowing police forces to do hot-spot intensive policing, which, as we know from the experience in Cardiff and other cities, has cut woundings by 40 per cent? This is a key part of dealing with these alcohol-related problems. Given that just a year ago only one fifth of hospitals were co-operating, what progress has been made?
I am grateful to the hon. Gentleman for making that point, because progress is being made. One of the issues that is being addressed right across the country, particularly in crime and disorder partnerships and particularly where the Home Office and the police are working closely with local authorities and agencies, is not only the health risk that alcohol poses, but the way in which health data can be used to inform this process. This approach is playing an increasing part in many more local partnerships’ problem solving: they are getting a better grip on what the problem is like in their area and how they measure it. People are realising that although enforcement action is important—that is why the police must always be on the front line on this issue—a number of agencies have a role to play. It is a sad fact that in tackling not only alcohol-related disorder but knife crime it is often the health service that sees things at first hand for the first time; they see the people who have been caught up in these things, both the victims of crime and its perpetrators. I am happy to tell the hon. Gentleman that what he describes is very much part of the work that is being done on tackling not only knife crime but a range of matters, including alcohol-fuelled violence and disorder.
That brings me to the issue of ADZs. New clause 3 proposes that sections 15 to 20 of the Violent Crime Reduction Act 2006 should be repealed. They give local authorities powers, in consultation with the police, to designate in their area an ADZ. To pay for additional policing and other enforcement activities they can impose charges on premises and clubs within the zone that sell or supply alcohol, as specified by the Secretary of State in regulations, and the regulations were introduced in June 2008.
I say to the hon. Member for Eastleigh (Chris Huhne) —we have debated this point many times—that there are, as he knows, no alcohol disorder zones yet. He seeks through his amendment to remove the power to set up alcohol disorder zones because there are none yet. Despite that, they are an important power available to local authorities, and it would not be correct to remove that power.
There have been discussions precisely on that point to ensure that some of the criticisms about bureaucracy made earlier in the debate do not apply. Let me be frank: as the hon. Member for Hornchurch (James Brokenshire) said, local authorities are not seeking to stigmatise their area, and they are certainly not looking to add costs to the evening economy, particularly as many businesses are feeling the squeeze of the recession. However, it would still not be correct to accept the new clause and remove the power to create alcohol disorder zones.
Local authorities and enforcement agencies have a wide range of tools and powers available to tackle alcohol-related crime and disorder, and it is up to them which they use. As I said, there is no single power than can be used to address the problem alone. Front-line agencies require a wide range of powers to tackle the problem. The hon. Gentleman paid tribute to the work of front-line staff and agencies in that regard, and I support his comments. There are many good examples across the country of areas where problems associated with the night-time economy are well managed.
Because alcohol disorder zones are a last resort, and are to be used only when all other avenues of persuading licensed premises to adopt a more responsible approach have failed, I believe that they still have a role. In our discussions with local authorities about why they have not created alcohol disorder zones, they have said that it is precisely the existence of that last resort that has encouraged them to look again at the alternative powers available to them. Therefore, alcohol disorder zones do not have to be introduced in order to have an influence: because they involve cost, they focus people’s minds on ensuring that they do everything that they can to tackle the problems in their area. In that regard, the fact that local authorities have not felt the need to use that power of last resort is testament to the good work that is being done in many areas.
I wonder whether the Minister can give me a single other example in legislation in which a power is presented on the basis that it will never be used but is valuable because its role is to exist but never be used. I know of no other such case in government.
I apologise. Clearly I have not explained to the right hon. Gentleman exactly what I am saying. I am not saying that that is the only purpose of alcohol disorder zones. If anyone said, “We intend to set up an alcohol disorder zone because we believe it’s necessary to deal with the conditions in our area,” we would applaud that. We are saying that not only does the power have a practical purpose—if a zone were introduced, it would raise additional revenue to pay for policing and other measures—but in the 18 months it has been available it has had an influence in many town and cities throughout the country. I do not discount for one minute the possibility that someone may come forward and say, “Having looked at and tried all the available powers, we want to set up an alcohol disorder zone.” I cannot say that that will not happen, and the right hon. Gentleman does not say that either.
Local authorities, licensing authorities and the police express an interest in using a full range of powers. The hon. Member for Hornchurch criticises the work that Home Office officials and the police do, day in day out, throughout the country in the areas worst affected by alcohol-related disorder, to decide which powers are most applicable and how to use them better. That may involve explaining that the last resort is an alcohol disorder zone, and if that is something that local authorities should be considering, I am sure that it forms part of the discussions. The hon. Gentleman calls the measure a waste of time, but I can assure him that a number of local authorities, including my own, which at the moment is led by his party, welcome the opportunity to have support from the Home Office and the police in making better use of the powers that are available. I do not accept that it would help us in any way to remove the power to create alcohol disorder zones from the statute book, particularly to go down the route suggested by the hon. Gentleman.
The hon. Gentleman talked about the stigma of having an alcohol disorder zone. What about the stigma of an area shown in the newspapers and on the television, and seen by the residents themselves, that has the kind of evening economy that does a disservice to our town and city centres? That has a stigma too, and that is why local authorities should be looking to use every power available.
I turn now to amendment 23. Clause 55 allows local authorities to introduce an order to limit the opening times in their area between 3 am and 6 am. The hon. Gentleman knows that when the Licensing Act 2003 was introduced, the commitment was given to keep the situation under review and, if necessary, to take further action. For the very reasons given by my hon. Friend the Member for Stoke-on-Trent, South, there is an issue with what happens between 3 am and 6 am. We are taking this measure so that if the emergency services are stretched, or the police are saying that further action should be taken, there is a power to close not one but a number of premises.
It is entirely up to local authorities. If they want to hold it in abeyance while they consider other powers and discuss them with licensed premises, that is entirely a matter for them. I should have thought, from the comments that the hon. Gentleman has made in these debates and elsewhere, that he would see some benefit in giving local authorities discretion. However, the point of amendment 23 is not to give local authorities discretion; it aims to change the nature of the debate. It would lower the threshold that must be met before a licensing authority may decide to make an order. If the amendment were accepted, the discretion of the licensing authority would be broadened and the test would be more subjective and less evidence-based.
Clause 55 was drafted in accordance with the better regulation principles that are central to our policy on regulation. I remind the House that they are: proportionality, which means that regulators should intervene only when necessary, that remedies should be appropriate to the risks posed and that costs should be identified and minimised; accountability, which means that regulators must be able to justify their decisions and be subject to public scrutiny; consistency, which means that rules and standards must be joined up and implemented fairly; transparency, which means that regulators must be open and must keep regulations simple and user-friendly; and targeted, which means that regulations must be focused on an identified problem and minimise side-effects.
Amendment 23 moves us away from those principles in a way that the House would, I believe, find totally unacceptable. The first principle is proportionality. I emphasise the words “only intervene when necessary”, because it is the word “necessary” that the hon. Member for Hornchurch asks us to remove from clause 55. I find that surprising, given that as recently as October last year, his party published, with great fanfare, a policy paper outlining the approach to regulation that a Conservative Government would adopt, if elected. The paper was snappily entitled “Regulation in the Post-Bureaucratic Age”. It cites the better regulation principles, which I outlined, as the starting point for the policy of Conservative Members. It includes the words:
“Regulators should only intervene when necessary.”
I ask the hon. Member for Hornchurch, who seeks to take the word “necessary” out of clause 55, whether that policy no longer applies. Did he not discuss the amendment with the right hon. and learned Member for Rushcliffe (Mr. Clarke), who promoted the policy as recently as October, or is this another example of muddle at the heart of Conservative policy making?
I am sorry to intervene again, but I am trying to avoid the temptation to make a speech. What the Minister is saying is that if a local authority thinks that the measure is desirable for its community, it is unreasonable to say that it should be allowed to make so limited a change. That is a very odd view of locality, and of local people being able to make their own decisions.
The right hon. Gentleman should talk to his Front-Bench team about that, because that is precisely what they are seeking to do—to introduce subjectivity, whereas currently, if one seeks to introduce a measure that has such an effect in an area, the need for it must be demonstrated in the evidence that prevails. Let me tell him why that is. The measure is about controlling the problems in an area, but it is also about taking a balanced approach to the night-time economy, because better regulation is important.
Clause 55 is important not just for businesses trading between the hours of 3 am and 6 am, but for the jobs that depend on those businesses. It is important that a licensing authority that goes down the route advocated by the right hon. Member for Suffolk, Coastal (Mr. Gummer) discusses with the police and other enforcement agencies what the situation actually is between 3 am and 6 am. The decision ought to be necessary, evidence-based, focused on an identified problem, and therefore targeted. It should not be taken lightly, particularly in an area where there are businesses in which, in many cases, hundreds of thousands of pounds have been invested.
Substituting the word “desirable” lowers the threshold. That offends against the principles of better regulation, to which I thought the party of the hon. Member for Hornchurch was committed, as mine is. I therefore hope that he will withdraw the amendment.
Well, we have certainly got the Minister excited on this point. I do not know whether that is the pent-up frustration of not having been involved in some of the previous debates. A lot of better regulation is about giving power back to communities. When the Licensing Act 2003 was introduced, it was supposed to be all about giving power back to local communities, but the Minister has made it very clear that it is actually all about central control, and that local accountability is a lie, because it has to be fettered very firmly by the dead hand of central Government, with the Home Office controlling what happens.
The Minister’s comments have highlighted how unworkable the provisions are. In many ways, he has made my case for me, having shown the unlikelihood of local authorities being able to use the powers set out in the Bill because they have been fettered by so much central control.
Can my hon. Friend imagine what the citizens of Tynemouth might think if they were told that it was unsuitable for them to make a change regarding what happens in the early hours of the morning, when they thought it desirable, because the Minister had decided that they had to prove the need for the change objectively? They would say, “If we in our community think it’s desirable, we ought to be able to make that decision.”
That is the point. I was genuinely trying to make the point sensibly, and not in a partisan way, so that we could try to make the legislation more workable in the spirit of positive opposition. It is interesting that the Government have turned their face against the proposal, and indeed against the very local communities that they claim to represent. It has been a fascinating debate, in terms of the Minister’s response. He very much seems to want centralising control over local authorities, which would make the scheme unworkable and ensure that local councils did not have the powers that his Bill seeks to set out. It has been interesting to see how he responded to amendment 23.
The hon. Member for Stoke-on-Trent, South (Mr. Flello), highlighted his experiences in his constituency and rightly identified the problems with alcohol that affect not just his community but many others. The hon. Member for Eastleigh (Chris Huhne) supported what we said about alcohol disorder zones. We have highlighted the fact that the measure was designed to create a soundbite, rather than a sound basis for dealing with the alcohol-fuelled disorder that affects far too many of our communities across the country.
The Minister accepted that there are problems, but the number of accident and emergency department admissions related to the problems of alcohol has continued to grow over the past few years. It seems clear that the Government’s policies have made the situation worse, not better. We believe that there is a much more elegant way of achieving the end of ensuring that contributions are made to the cost of dealing with the late-night economy and late-night drinking: a late-night levy. By contrast, alcohol disorder zones have been a policy disaster zone from start to finish. We believe that there is a better way of dealing with the problem. That is why we would introduce a late-night levy and abolish ADZs, and why we would like to test the opinion of the House on this issue.
Question put, That the clause be read a Second time.
New Clause 4
Injunctions: gang-related violence
‘(1) Section 49 of the Policing and Crime Act 2009 (interpretation) is amended as follows.
(2) For the definition of “court” substitute—
(a) where the respondent is aged over 18 at the date of the hearing, the High Court or a county court, and
(b) where the respondent is aged between 14 and 17 at the date of the hearing, a youth court;”.’.—(James Brokenshire.)
Brought up, and read the First time.
The measures concern the separate issue of gang injunctions. The Conservatives certainly recognise the need to examine measures to deal with the problems of gang-related violence and young people being drawn into gangs. In some parts of the country there are gang rivalries, whether they are based on postcode territories or on the use or wearing of colours by rival gangs, which can mean that serious violence occurs between young people—often the most vulnerable members of our society. We must therefore consider this issue extremely carefully. The question is whether the measures in the Bill to extend gang injunctions to include young people will be effective or workable given that antisocial behaviour orders and other potential tools are already available to the police and to local communities when dealing with gang-related matters. Some such measures can be used to prevent young people from getting involved with gangs and getting caught up in some of the appalling violence that can occur. Certainly when we hear about gangs and serious violence, such as some of the shootings that have taken place, it underlines the need for preventive measures to protect young people from being sucked into that sort of gang existence, which can be extremely difficult to escape once they are in.
The measures in the Bill largely date back to the Policing and Crime Act 2009, which introduced a new mechanism to create gang injunctions. Under that legislation, the ambit of those injunctions was limited to adults largely because that mechanism was intended to build on certain aspects of the civil law and on the concept of dealing with a breach as a contempt of court. When the 2009 Act was being debated, the Government accepted that that mechanism would not be a suitable way of dealing with children and young adults because the ultimate sanction available to the courts—a sentence of imprisonment—would have meant sending young people to adult prisons, which would not be appropriate given the need to focus on rehabilitation. It would be better, more effective and within the framework of the existing law for a young person to go to a young offenders institution. The whole mechanism is based on the court ruling that previous injunctions that had been used in the west midlands, under section 222 of the Local Government Act 1972, were not applicable and that authorities had to go down the route of using ASBOs first.
We understand and recognise why the Government seek to move forward with this measure to deal with the issue that has been outstanding since the 2009 Act came into being. However, they are seeking to crowbar into civil law various sanctions that might otherwise be available to youth courts when dealing with breaches of ASBOs, for example, and other, more criminal, sanctions. They are creating a hybrid between the criminal law and the civil law by attempting to bolt into the civil law system various sanctions that might otherwise be available under a more criminal approach.
We debated this issue at reasonable length in Committee, and I accept and respect the amendments that the Minister has tabled in response to the points that we raised about the need for a clear mechanism for having pre-sentence reports for the courts before they decide whether gang injunctions have been breached and which sanctions are appropriate. Equally, some of the mechanisms that exist in the youth courts should be reflected. If a court thought that a sanction of detention was appropriate, it would have to express its reasons for that decision in open court.
We certainly welcome the measures that the Government have sought to introduce in dealing with those technical issues, but I still question whether bolting the measures into the civil structure is the right way of building things. I wonder whether it might be more appropriate for the youth courts to deal with these issues given that we are dealing with a kind of hybrid mechanism that crosses over between criminal and civil law. The youth courts will be more used to dealing with the relevant issues and will know what may or may not be appropriate. Given that they have that knowledge and that they regularly deal with young people in that way, it might be better to bring the approach regarding gang injunctions and young people within the framework, context and scope of the youth courts.
The new clause and the associated amendment are therefore designed to test the Minister on the extent to which that line of thinking was adopted to ensure an even-handed approach to the use of the orders and in response to breaches of them, in contrast with antisocial behaviour orders and certain other sanctions that might otherwise operate in the youth court. We need to ensure that there is a level playing field and that these matters will be dealt with appropriately, based on knowledge and experience in dealing with young people.
We are in uncharted territory because the provisions that apply to adults have yet to be used. Because they are so new, they have not yet been implemented, so we cannot rely on experience of how they operate in practice and how breaches should be dealt with. Case law must be developed to provide a framework. We are talking about these issues in the abstract, unless the Minister can give the House any new information that was not available when the Committee considered them.
It is worth testing the Government to find out whether the right approach has been adopted or whether a different mechanism is needed for young people who are subject to the orders. Before an order can be imposed, the gang connection must be established, as well as the potential criminality associated with the young person’s actions and the need to remove that young person from the dark path of gang membership and involvement in activities that may lead to serious criminal behaviour.
The question is whether the Government have got their approach to young people the right way round or whether, instead of bolting provisions on to the civil court, the orders should reside in the youth court. I hope the Minister will reflect and confirm that the Government’s approach is likely to be effective, proportionate and based on the experience of those dealing with young people in the civil courts. I will listen with interest to the Minister’s response to the debate to see whether the Bill has got it right.
I shall be brief so as not to labour the point. We accepted in Committee that in some circumstances gang injunctions can be useful for tackling adults involved in gang-related violence, and we supported the Government on the Policing and Crime Bill last year on the basis that such injunctions would not be applied to children. However, that commitment has been broken in this Bill and we cannot support their use on children. The penalties for breach of the injunctions are draconian and they blur the line between civil and criminal law for children in a dangerous way.
The proposals do nothing to address why children are in gangs or how to help children get out of them. Instead, they add to the criminalisation of children. Gun and knife crime need to be tackled using intelligence-led policing, hot-spot policing, which we discussed earlier, using accident and emergency data, and better use of intelligence-led stop and search. Although I understand the purpose of the official Opposition’s amendments, and that they are trying to make a Government proposal more palatable by introducing the new clause, we are not in favour of the powers being used on children, so we will not support it even though it is clearly well intentioned and aims to make the provisions work better.
I am grateful to the hon. Member for Hornchurch for tabling his amendments. I hope that he will welcome the fact that, once again, we listened in Committee to the discussions on gang injunctions and introduced amendments accordingly.
I am sorry to hear that the hon. Member for Eastleigh is unable to support the Government amendments or the principles behind the new clause. I recognise that there is a need not just to tackle gangs of over-18s, as we did in legislation last year, but to support individuals below the age of 18 who are involved in gangs, as we are trying to do in the Bill.
The amendments relate to how we approach under-18 gang injunctions in court. The Government amendments deal with the relationship between youth offending teams and consideration by the courts of those gang injunctions. I remind the House that the under-18 gang injunction is intended to be a pilot. We are looking at two areas for piloting to take place. I hope that will assuage the concerns of the hon. Member for Eastleigh. We will learn lessons about how the gang injunction works in practice.
The hon. Member for Hornchurch expressed concerns about gangs and how they operate. I recognise those concerns. We need to consider carefully what steps we need to take to prevent gang membership. Consideration of the new clause and the amendments gives us the chance to examine in detail how gang injunctions will work. We believe that they should prevent serious acts of violence from occurring, break down gang culture, prevent younger gang members from escalating into poor behaviour, and provide opportunities for agencies to engage with gang members to develop effective strategies to help them leave the gang.
I draw the attention of the House to Government amendments 17 and 18, which provide for help and support from youth offending teams at an early opportunity, not just to give a view on how gang injunctions should operate and whether individuals are appropriately considered for that, but to give the clarity that the hon. Member for Hornchurch called for in Committee, to ensure proper engagement from youth offending teams to make representations to the court about the most appropriate sentence, how the injunction will operate and, most importantly, what should be done in the event of a breach of such an injunction, which was the subject of considerable discussion during the Committee’s consideration.
As I said previously, youth offending teams should, at the earliest opportunity in the gang injunction process, ensure that the injunction is tailored to the individual and therefore be more likely to produce the desired outcomes. That is why the Government amendments allow youth offending teams to make representations to the court about a range of matters. Amendment 18 further emphasises the point that detention for breaching an injunction is a last resort. Throughout my work in the Ministry of Justice and in the Home Office, I have been clear that detention should be a last resort.
I am disappointed that the hon. Member for Eastleigh does not support the amendments. The gang injunction is meant to be a procedure that takes individuals out of a gang and provides interventions and support to try to break gang behaviour. If the injunction were breached, as might occasionally happen, that would be seen by me and by the Government as a failure of the gang injunction and of the entire process. I accept that we need to look at early intervention and alternative activities, and at the work that we are undertaking on gangs, guns and knives, the round table work, the knife crime action plan and all the other work that we are doing. Ultimately, however, if we are to make an impact on gangs, particularly those with members under 18 years old, the pilot will help us to develop a form of action that could help individuals to leave those gangs and, accordingly, receive the help of youth offending teams before any breach action is taken or any detention is forthcoming. I hope that the hon. Gentleman reflects on those views and changes his mind.
The hon. Member for Hornchurch asked whether we had had to date any gang injunctions from the over-18s legislation. The answer is no, we have not. That was the situation during Committee, and it remains the situation now, but it does not get away from the fact that we must take action on under-18s with this gang legislation today. I cannot accept his proposed changes, new clause 4 and amendment 24, so I hope that he will not press them to a vote. They would insert a new clause requiring under-18 gang injunctions to be heard in the youth court rather than the county court, and remove the clause that gives the county court the power to make a supervision order or a detention order when a person aged under 18 breaches their injunction.
I accept that the youth court is the specialised criminal court for under-18s. However, it is not, by any means, the only court where under-18s are dealt with. Hon. Members will be aware that youths can appear in the adult magistrate’s court, the Crown court and the county court, depending on the type of case. Hon. Members will know also that the county court has special procedures for cases that involve young people, including the requirement that they are assisted by a litigation friend. Therefore, the structure about which the hon. Gentleman was concerned is in place to deal positively with gang injunction hearings, and it will not be a departure from the existing procedure.
I strongly believe that the county court is the specialised court for civil injunctions, and, following our examination and roll-out of the over-18 gang violence injunctions, it will become the specialised court for injunctions for under-18s. The project is a pilot; if Royal Assent is given, we will determine the areas in which it operates; we will monitor that pilot; and we will evaluate how it operates in practice. If there are difficulties, we will reflect on them as part of our considerations, but the county courts’ experience in hearing—in due course, when they occur—general over-18 injunctions, granting appropriate prohibitions and requirements and sentencing individuals following breach hearings for over-18s means that in most places it will be the appropriate place to hear an under-18 injunction, if it is referred to court.
We have sought to involve youth offending teams in the process at the earliest opportunity, and I believe that we can support the injunction’s effective use to help manage under-18s and help YOTs manage the objective of leading under-18s away from a gang in the first place.
I am following the Minister very carefully, but I still find it difficult to understand the issue. He says that the whole purpose of the measure is to try to lead young people away from gangs, and that the system is supposed to be remedial. Would it not therefore be natural for the courts that fundamentally deal with such matters, the youth courts, to deal with them? I fail to understand why, as a first resort, he has gone to the county court, rather than to the youth courts, which are so much better prepared to deal with such circumstances.
I am grateful for the right hon. Gentleman’s contribution. In Committee, we discussed the likely age range of individuals who would face a gang injunction, and some members will be as young as 13 or 14. The Committee took evidence from various charities and others in order to look at those issues before commencing its scrutiny of the Bill, and we assume that the vast majority of individuals who become involved in gangs will be aged 16 to 18. When we pilot the gang injunctions, as we intend to, individuals on the cusp of 16 or 17 might have an injunction that lasts beyond their 18th birthday. Breaches could occur following the granting at seventeen and a half of an injunction that continues until the individual is eighteen and a half, because the injunctions might last for 12 months or, perhaps, longer.
We have looked at the issue, and breaches, specialist injunctions and the type of activity under consideration are best dealt with by an adult court, because it has the expertise. Sad though it might be, many individuals who are under 18 will become 18 and over during the course of the injunction, so the breach may well be best dealt with by the court with that relevant expertise.
We have a clear definition of “gang” and “gang-related violence”. We have looked at the Police and Crime Act 2009, and it describes gang-related violence as that which
“Consists of at least 3 people; uses”—
as the hon. Member for Hornchurch said—
“A name, emblem or colour or has any other characteristic that enables its members to be identified by others as a group; and is associated with a particular area.”
We want to ensure that we protect young people who might be on the fringes of such activity, on the fringes of a gang or on the fringes of being involved with a name, an emblem or a geographical area. They would therefore benefit from an injunction. My amendments indicate that the youth offending team would, following the hon. Gentleman’s helpful suggestion, be involved formally in some assessments, and be involved in the event of any breaches before the court took a final decision. In the pilots, the injunctions will be useful to ensure that we provide alternative activities, keep people away from the geographical area, potentially stop them wearing a name, emblem or a colour, stop them meeting certain individuals and help them, through positive activities, to turn away from gang activity.
That is why I cannot for the life of me understand why the hon. Member for Eastleigh does not support the proposal. I should really welcome his intervention to tell me why he does not support it, because we should get it on the record. Through the measure, we will help people to move away from gangs, ensure that they do not become involved in gang activity and meet an obligation to help people to participate in a positive activity. This is the last chance for him to put on the record why he does not agree with that proposal, because, given what I have said, I genuinely cannot find any way in which anyone could.
The Minister knows perfectly well why I cannot agree. My position is clear from what I said in my speech, and from what we said in Committee. In reality, the proposal further criminalises children, and our party does not think that that is appropriate. Indeed, when these gang injunctions last came up, the Minister’s party did not, either.
With due respect to the hon. Gentleman, our proposals state that there are clear support mechanisms available so that the YOT can make a judgment on the breach. If I reach a situation, through the courts, where a breach has occurred, the gang injunction will have failed. We are looking at two pilots, trying to identify two areas and considering how the measure will work for the gangs themselves. If a breach occurs, the whole process—of identifying individuals and the injunction, of taking the injunction through the courts, and of assessing in the adult court whether the injunction should be made and whether the youth offending team has been supported—will have failed. I accept that a breach may occur, but if we reach that stage we will have failed.
My hon. Friend is absolutely right. The whole purpose of the injunction is to remove people from criminal activity and to support them so that they do not breach it. In the legislation, I have to take steps to deal with a breach, and that is why we have put in place the ultimate penalty of a custodial sentence. However, the intention is not to impose a custodial sentence—that will happen if the injunction has failed. I want the injunction not to fail and to work properly. I want to ensure, through the efforts in these clauses, that this is undertaken in a positive way through the pilot so that we can look at the issues and learn lessons, and, if necessary, reflect on the issues raised in the new clause.
I have tried to explain that the gang injunction is about trying to have an intervention that is not a criminal intervention but is intended to support the young person in getting away from the purposes of a gang, which, I remind the House, is a group that
“consists of at least 3 people; uses a name, emblem or colour or has any other characteristic…and is associated with a particular area.”
If an individual is examined and found to fall into those categories, and if the court determines that they would be best served by having an injunction to remove them from those people, that group or that area, then that is what the gang injunction is about. The injunction will run for a period of time and will have support from the youth offending team, the police and the agencies to ensure that the young person is not involved in those three ways. We must have in place a penalty of sufficient deterrence to ensure, with the help and support of the agencies, that a breach of the injunction does not occur. Our objective is to ensure that we have a situation whereby there is sufficient support to ensure that we complete the task of dealing with gang-related violence, and the threat of it, in a positive way. The hon. Member for Eastleigh would prefer that we did not have that penalty. I can tell him that a breach in itself is not a criminal offence, and it does not lead to a criminal record. I repeat to him, in simple terms, that the gang injunction is meant to remove somebody from a particular problem. It is about ensuring that that individual is given help and support, and it is not a criminal offence.
I have spoken on this matter for longer than I anticipated. I hope that the hon. Member for Hornchurch will withdraw his new clause and that the Government amendments will be accepted.
Unlike the Minister, I intend to be brief.
I heard what the Minister said, and there are clearly issues of workability in relation to these provisions. I notice that he is setting great store by the pilots in being able to iron out any of the matters that might arise; we shall wait and see. There is a need to focus on the role of the county court. I heard his remarks about the ability of the county court to deal with young people appropriately, but there is more experience in the youth court in dealing with such matters. We are talking about a wholly new concept of detention potentially being made available to the county court. That needs to be considered carefully, and it would be better if there were some experience to guide that. However, I do not intend to press the new clause to a vote.
Clause, by leave, withdrawn.
Powers to take material in relation to offences outside England and Wales
Amendments made: 8, page 5, line 9, leave out ‘who is a United Kingdom national or resident’.
Amendment 9, page 6, line 5, leave out ‘who is a United Kingdom national or resident’.
Amendment 10, page 6, line 38, leave out paragraph (b). —(Mr. Hanson.)
Powers to take material in relation to offences outside Northern Ireland
Amendments made: 11, page 18, line 9, leave out ‘who is a United Kingdom national or resident’.
Amendment 12, page 19, line 6, leave out ‘who is a United Kingdom national or resident’.
Amendment 13, page 19, line 37, leave out paragraph (b). —(Mr. Hanson.)
National DNA Database Strategy Board
Amendments made: 14, page 72, line 5, at end insert—
‘( ) The National DNA Database Strategy Board must issue guidance about the immediate destruction of DNA samples and DNA profiles which are, or may be, retained under—
(a) the Police and Criminal Evidence Act 1984, or
(b) the Police and Criminal Evidence (Northern Ireland) Order 1989.
( ) The following must act in accordance with any guidance issued under this section—
(a) any chief officer of a police force in England and Wales;
(b) the Chief Constable of the Police Service of Northern Ireland.’.
Amendment 15, in page 72, leave out line 9 and insert
‘lay a copy of the rules before Parliament.’.
Amendment 16, in page 72, line 9, at end insert—
‘( ) The National DNA Database Strategy Board must make an annual report to the Secretary of State about the exercise of its functions.
( ) The Secretary of State must publish the report and must lay a copy of the published report before Parliament.
( ) The Secretary of State may exclude from publication any part of the report if in the opinion of the Secretary of State the publication of that part would be against the interests of national security.’.—(Mr. Hanson.)
Power to issue a domestic violence protection notice
With this it will be convenient to discuss the following: amendment 21, in clause 25, page 73, line 25, after ‘determined,’, insert ‘or for seven days if earlier’.
Amendment 22, in clause 27, page 74, line 21, leave out subsection (9).
Amendment 64, page 74, line 22, at end insert
‘or for a period not exceeding 56 days whichever shall be the earlier’.
Amendment 2, in clause 28, page 74, line 34, after ‘consider’, insert—
‘( ) the welfare of any person under the age of eighteen whose interests the court considers relevant to the making of the DVPO (whether or not that person is an associated person), and’.
Amendment 54, page 75, line 7, after ‘also’, insert
‘, unless such a provision is incompatible with any legal obligations imposed on P by another court or other lawful authority,’.
Amendment 1 relates to the welfare of children in domestic violence situations. I am sure that the whole House shares most people’s revulsion at domestic violence generally. It is perhaps one of the most appalling breaches of trust to be involved in a relationship with somebody that leads on to violence in a situation where one party—the victim—is often almost exclusively under the control of the perpetrator of such acts. That control is exercised in a whole host of ways, be it through the violence, financial control or emotional control.
My amendment deals with how children fit into domestic violence situations. Sadly, far too often, children are involved through being upstairs listening to the shouts, the screams and the smashing of furniture. Perhaps their treasured toys are being destroyed in these acts of violence. Sometimes, even more frighteningly, the children themselves are caught up in the violence and are downstairs in the room while it is going on. They may try to intervene to save their loved parent from being caught up in the violence. Sometimes the children are used as pawns when a threat is made against a child, either explicitly with the child present or as a way of controlling the victim in the domestic violence situation. Children will witness violence in the home when there are cuts and bruises, and perhaps broken furniture, when they go downstairs the next morning. Time and again, children are caught up in the terrible circumstances of domestic violence and become yet another innocent victim of this appalling crime.
Many children then grow up to lead healthy, good lives and are unaffected by the appalling things that have happened to them, but sadly, for far too many children, the scars stay with them for life. It may affect their own future relationships; it may affect their mental health in a host of ways or many other aspects of their lives. It may cause problems very early on in terms of their disrupting the classroom, through to adulthood and problems in later life.
I have great concern about how children are affected by domestic violence. Often, police officers are calling at the same addresses week in, week out, having being called by neighbours, by the victims, or by older children who phone for them to intervene in the situation. They see the damage that is caused to people’s lives and to property, and, in the context of my concerns, the damage caused to children and their development.
I very much welcome the clauses that introduce protection notices, but I am seeking greater knowledge and recognition of the problems that children suffer in such situations. For that reason, my amendment is designed to ensure that their needs are taken into account by the officer attending the premises where the domestic violence is taking place, and subsequently by the courts. I would like a police officer to be able to turn up at a home with which they are probably very familiar, having been called there many times in the past, and issue the notice, not only because of the situation as regards the victim but because of its impact on the children. The amendment would allow them to intervene to protect not only the immediate victim but the children, and then subsequently, when the notice goes through to the court stage, the courts could take far more notice of the impact on those children than would otherwise be the case.
This issue has been well rehearsed; it was certainly discussed in Committee. Although that debate happened right at the end of one day’s proceedings, it was an important discussion in which concerns were expressed by Members on both sides. I hope later either to put this matter to the House, hopefully for its agreement, or that the Minister will accept the amendments. I look forward to what I hope will be a short but important debate following my introduction of them, and to a situation in years ahead in which children will be protected to a far greater extent through these notices and orders as a direct result of the action that I hope is taken in the House this evening.
I congratulate the hon. Member for Stoke-on-Trent, South (Mr. Flello) on following up a number of the points that we discussed in Committee on recognising the impact of domestic violence on children. We touched on the intergenerational effects of domestic violence and the considerable impact that living in a disruptive home environment, in which there is violence, drug taking and complete chaos and disorganisation, may have on a young person. It is important that that is recognised.
I just wish to clarify something in the hon. Gentleman’s opening remarks, and I look forward to the rest of his comments. He talks about chaotic lifestyles and drug abuse, but we should recognise that even some supposedly normal households, perhaps with extremely important professionals living in them and with a semblance of peace and harmony, can have pretty horrendous domestic violence problems.
The hon. Gentleman makes his point well about the insidious impact that domestic violence has on those who suffer from it. It can occur among those from all sorts of livelihoods and backgrounds, and I would not wish to give the impression that it is located only among certain groups or people from certain backgrounds. It is not, and the measures that we are discussing—domestic violence protection notices and domestic violence protection orders—are important in recognising that the problem touches people from all sorts of backgrounds. It is worth talking about the impact that domestic violence has on children and the fact that is not ring-fenced simply to partners or spouses. Its impact on children should be considered carefully, and the concept of having more formal recognition of the problem is one that we would consider carefully. We need to consider the best policy direction to take on this important issue.
More generally on the issue of DVPNs and their interrelationship with DVPOs, in Committee we raised a number of points about their potential impact and the time that might be taken between the receipt of a notice and the case going to court. The Bill is structured in a way that anticipates that if someone is in receipt of a DVPN, they will go to court within 48 hours. On Second Reading, questions were raised as to the reality of whether a substantive hearing could take place within that time, and the likelihood, given the complexity that may be involved and the need to take evidence, that the period needed might be considerably longer.
In Committee, the Minister emphasised that the process would take place quickly and that there would be a sense of urgency. However, as the Bill is currently framed, it appears that the period between a notice being issued and the substantive court hearing could be longer than the period of the order itself, which is stated as being between 14 and 28 days. The orders are intended to buy some breathing space to allow a potential victim of domestic violence to consider other options.
We understand clearly the concept of such “go” orders and how they have been utilised to positive effect in other jurisdictions, but we believe that some sort of backstop is needed to maintain the focus on the need for urgency and for a substantive hearing to take place within a reasonable period. Unless that takes place, it seems that the process could be open-ended. That is why, in our amendments, we say that a DVPN should last for a period of up to seven days. That would ensure that there was a substantive hearing and that an order was either granted or dismissed because the relevant evidence had not been given.
As the Minister has made clear, there will be an automatic requirement that once a notice is issued, the case will have to proceed to a substantive court hearing to determine how it should be disposed of. I know that other Members may wish to take up that point in relation to other amendments. We believe that there is some merit in considering a backstop of seven days on the issuing of a notice, given the restrictions that are likely to apply, such as telling someone that they can no longer reside at a particular place that may be their home. We need to strike a fair balance between the relative interests and ensure that there is a focus on getting to court, disposing of the matter quickly and, if a substantive order is required, ensuring that it is granted. That is better than simply relying on having a notice for an extended period. We need to allow the matter to be determined by the court, rather than effectively being determined by the police officer who issues a notice in the first place.
I should like to say a few words about domestic violence protection notices and speak to amendments 21 and 22. I begin by saying that this is a troubling night—I wonder whether other colleagues think so—in the sense that over the years, arguments have quite often been put forward by the Opposition or Government Back Benchers on Second Reading that require a Bill Committee to consider an issue carefully. The Committee meets, and perhaps a dozen, 20 or 30 amendments are tabled—all, I hope, well motivated, and sometimes with some merit.
Yet there has been a tendency for years now for Governments simply not to accept an argument or an amendment. Why? Are they fearful of doing so? Are they told by their civil servants that they cannot accept any amendments? How many hours of Committee time have been wasted over the past few years with arguments being put forward in the certain knowledge that the Government will not accept them, even if they are good arguments?
That troubles me, because there are men and women in this House who have actual experience of the world of the courts and justice—experience that, however clever some of these young civil servants are, they have never had. Indeed, some Ministers have not, although Ministers know a great deal. So many of the people who I think are pulling the strings behind Government Ministers are saying, “No Minister, you cannot accept this.” “Why not? It seems reasonable.” “Because we say so.” But what is their real position? They have not got a clue about the real world outside.
That comes into play on the issue of domestic violence protection notices. As I said on Second Reading, the issuing of such a notice is a very serious matter, not least because it will give a policeman the power to throw a person out of their own home. I cannot remember such legislation coming before this House—it may have done, but I cannot remember it. It is extremely draconian. A policeman is a member of the public with a warrant to make an arrest, and in my judgment, “Don’t give the police too many powers” is a very good motto.
We have to accept that the police will be given that draconian power under clause 24. Clause 25 states that a DVPN must state that an application for an order
“will be heard within 48 hours”.
How on earth any policeman can say that the application for an order will be heard in 48 hours is absolutely beyond me. He can say no such thing! I am assuming that Saturdays, Sundays and bank holidays do not count, but does the Minister—or, much more importantly, any of his civil servants—realise how the courts work? One goes to a court to issue an application, and then gets a hearing date. The Minister is looking at his civil servants. They are desperately trying to write out notes to tell him what happens in practice, but I would be surprised if one of them knows.
A very fine sight, if I may say so, particularly on the rugby field in the old days and the golf course nowadays—[Laughter.] I am way off the subject, for which I apologise.
If the applicant—the police officer—goes to a court on a Friday afternoon, who can guarantee that the application will be heard in the court on the Monday or Tuesday morning? The clerk of the court is not so bound by law. If the clerk is so bound by law, let someone tell me that. The clerk will in fact list the application at the first available opportunity, which might be two, three or four days. Even then, it might get only a 10-minute hearing date, because that is all the court is prepared to give. How does that tie up with a notice saying that the application will be heard in 48 hours?
Did the Committee really understand the difference—if there is one—between an interim and a final order? Did the Committee really understand what happens in practice if an application is before the court within, by a miracle, 48 hours? Does anybody understand that in practice—I do not expect any of the civil servants to have the slightest idea about this because they have probably never been in court—somebody stands up and the court says, “Is this a complicated matter?” at which point counsel for the husband or wife says, “Yes, it is, because I wish to fight this. We have to get evidence from the following 10 people and for our case to be heard. We wish to apply for legal aid. We have some work to do to check out the law”? The court is then duty bound in justice to adjourn the matter. What happens then? Does the domestic violence protection notice stay in force? Is the subject of the notice still thrown out of their house?
The barrister then asks the district judge, “How soon can you hear the application?” and the latter replies, “Three weeks on Tuesday. That’s the first date we’ve got.” Does anybody disbelieve me when I say that that is how the world works in practice? Is the order to continue delayed till three weeks on Tuesday? The district judge then asks the barrister, “How long do you want by way of an adjournment?” to which the barrister replies, “Oh. A fortnight should do, or perhaps three weeks, because I’ve got witnesses who are going to be away. In fact, can you list it for the month after next?” Where does that leave the court? Can the Minister tell me whether the domestic violence notice remains in force throughout? If it is in force, is that a great thing? Does the Minister intend a notice to remain in force for 36 or 48 days? It is all very well him looking at the civil servants to see whether that is his intention, but I do not know.
That is a great, troublesome area, which is why amendment 21, which would mean that the DVPN continues in effect until the application has been determined,
“or for seven days if earlier”,
is sensible. That is also why amendment 64 is sensible, so that clause 27 states:
“If the court adjourns the hearing, the”
“continues in effect until the application has been determined”,
or for 56 days, whichever is earlier. There need to be limits, and someone in this building needs to understand what actually happens in court. Otherwise, the measure will be largely unworkable.
I want to make only three points, two of which are essentially on drafting. However, I shall first address a few remarks to the points made by the hon. Member for Stoke-on-Trent, South (Mr. Flello), with whom I think I agree.
It is proper, when considering the issue of a notice, that the officer takes account of persons under the age of 18. Understandably, we have been contemplating, and concentrating on, the relationship between P and P’s partner—that is the most usual state of affairs. However, of course, within a household, there can be more than one relationship. There might well be a relationship of violence between P and partner, but one cannot exclude the possibility of a relationship of violence between the partner and the person under 18. In those circumstances, P might be a protector or bulwark for the person under 18 against the partner. That is one point to keep in mind.
Another quite different but related point is that there might well be an important relationship of dependency between P and the person under 18, and I can imagine other relationships that are relevant to whether a notice should be issued. Therefore, for those reasons, and indeed for the reasons advanced by the hon. Member for Stoke-on-Trent, South, it is right that the interests of the person under the age of 18 should be taken into account as a relevant factor.
The other two points that I wish to make are essentially drafting points, as I said. For amendment 64, which is in my name, I depend very much on the arguments advanced by my hon. Friend the Member for Woking (Mr. Malins), and I have proposed an end date of 56 days on the running of the notice very largely for the reasons that he gave. He draws on his experience as a district judge, which will include repeated adjournments in magistrates courts. That coincides with my experience, although mine is not quite as contemporary as his.
My last drafting point would be addressed by amendment 54, which deals with a matter I raised in Committee. The court of course has a power to make non-residence requirements as part of the order, but one must contemplate that other legal orders may already be in place that could, for example, require P to reside at the matrimonial home. At least two examples rapidly occur to me. First, it may well be that as a condition of bail, somebody is required to live at the matrimonial home. Secondly and alternatively—this arises not under an order of the court, but nevertheless under the order of a lawful authority—a control order may well require P to live in a specified place, where he or she is residing with the partner.
It seems quite plain that the court that is in the business of making the order should take account of, and not contravene, other, earlier legal obligations. Clearly, one could say, “The matter should be adjourned until the other court or lawful authority has had the chance to amend,” but I am not sure that that would be a satisfactory approach. Upon whom does the burden of testing the other court rest? It would also lead to a considerable delay. My bet is that the Bill should state that the non-residence requirement in the order should issue only if it is not inconsistent with some other obligation imposed by a court or legal authority. That is the thinking behind proposed amendment 54.
I am grateful to hon. Members for their contributions to the debate. I especially appreciate the contribution from the hon. Member for Woking (Mr. Malins), and I hope that I can reassure him. He said that very little comes out of the discussions on amendments in Committee. That may be his recollection of what life was like when the Conservatives were in power—I certainly spent five years as an Opposition Member without having a single amendment accepted on any Bill—but even this evening we have considered amendments that I have tabled to reflect suggestions made by the hon. Member for Hornchurch (James Brokenshire) in Committee. Some 14 amendments this evening are based on discussion in Committee, and amendment 1 was also tabled in Committee by my hon. Friend the Member for Stoke-on-Trent, South (Mr. Flello). We wanted to change the wording slightly, and I discussed that with my hon. Friend. He listened to what I said, and he has tabled an amendment that reflects his concerns in Committee and we will accept it this evening.
In that case, I shall not kick the hon. Gentleman too hard this evening. That is only fair, as he may be in his final 12 or so weeks in this House—[Hon. Members: “Oh!”] Well, it is 12 weeks until 3 June and Dissolution could happen at any time before then.
I can tell the hon. Gentleman, from my 12 years as a Minister in five different Departments, and including four years in No. 10 Downing street, that I know that Ministers have an impact on policy decisions. They listen to amendments and develop policy, and they also test policy that is suggested to them by civil servants. I hope that that will continue for a long time to come. He may feel that his points are not adequately reflected in my reply, but we do wish to make changes to domestic violence protection orders in response to the discussion in Committee.
I wish to pay tribute to my hon. Friend for tabling amendments 1 and 2, which reflect concerns expressed to members of the Committee by the NSPCC, which wanted to highlight the important issue of domestic violence protection orders and to consider how children can be impacted by domestic violence in the most serious and unfortunate ways. I want to ensure that these new measures help to protect children from any further harm at the hands of this terrible and very immediate form of violence.
In Committee, we had a helpful debate on this issue, and these amendments reflect those discussions. I was able to discuss the amendments with my hon. Friend so that I could accept them, and I am pleased that he has tabled them in the form before us tonight. The purpose of these amendments is to ensure that the welfare of children is taken into consideration before a DVPN or DVPO is made, and that this is included on the face of the Bill.
These amendments will require that, before making a DVPN or a DVPO, the police and the court must consider the welfare of any individual under the age of 18 whom the officer deems is relevant to the case. That is in addition to other considerations about the opinions of the victim, perpetrator, and any other associated persons. These amendments will not change the primary focus of the provisions, but will ensure that the children are taken into consideration in the granting of the DVPN or DVPO. The impact of domestic violence on children is relevant and should be a consideration.
I hope that I can assuage the concerns of the hon. Gentleman and the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) by saying that, as with gang injunctions, domestic violence orders are intended as a pilot scheme to start with. We are looking at piloting them in two areas, if the Bill makes progress in the other place and Royal Assent is achieved. In Committee, I made it clear that DVPOs would not be rolled out across the whole country immediately, for the very reasons that the hon. Gentleman mentioned. We want to introduce an effective scheme, and there is a gap in provision that domestic violence protection orders and notices can fill.
However, I want to ensure, for the very reasons that the hon. Gentleman set out, that the court facilities are available, and that the police understand the process and have senior officers available to authorise approvals. We also want to ensure that the process makes a difference, that it is compliable—as we think it is—with the human rights of those excluded from their properties, and that it meets the need to protect individuals who are vulnerable to domestic violence. Therefore, whatever else I say today, I hope that the things that the hon. Gentleman has mentioned, as well as the concerns expressed by the right hon. and learned Gentleman, are reflected on as part of the pilot, so that if those circumstances arise, we can measure that and make changes accordingly.
The time limit of seven days contemplated by amendments 21 and 22 is simply too short for the consideration of every possible case. Amendment 64 sets the longer deadline of 56 days, but in my view that time limit is unnecessary and undesirable. Let me say to both the right hon. and learned Gentleman and the hon. Gentleman that the purpose of the order—the pilot will test it—is to be put in place as soon as possible after the police officer concerned gets approval from a senior officer for the case to be progressed accordingly.
Does the Minister not think it somewhat strange that a notice that could contain largely the same provisions as an order subsequently conferred by the court could in effect be for longer than the order itself? As he will appreciate, there is a maximum period of around 28 days for the order granted by the court. Therefore, an administrative sanction given by a police officer could extend for considerably longer than something decided through a court process with judicial oversight, which seems somewhat strange, given the relative balance of who should be making such decisions. Is the Minister comfortable with that?
I am comfortable with it, because the objective of domestic violence protection orders is to be expedited as quickly as possible, and I hope that the pilot will test that. That is the purpose of the order. It is intended to be an immediate response where there is insufficient evidence to ensure an immediate prosecution, but where there are concerns about the safety of an individual or—after I accept amendment 1, in the name of my hon. Friend—young people who are also part of the family circle.
The purpose of the order is to be expedited extremely quickly. My view is that orders will be expedited quickly, and that will be the expectation. The pilot will test whether that is the understanding, but our expectation is that that will happen. We have said that we intend to issue guidance to the police under the Bill that will impress upon them the importance of acting expeditiously in gathering evidence for the DVPO application to be determined. Also, the courts will be alive to the risk of injustice if a DVPN is allowed to continue for too long, and will, I am sure, refuse requests from the police to adjourn applications if there is an unreasonable length of time. The purpose of the orders is to be speedy and to be expedited accordingly. I therefore hope that the hon. Gentleman will not press amendments 21 and 22, but if not, I shall unfortunately have to reject them.
Amendment 54, standing in the name of the right hon. and learned Gentleman, also covers a matter that we discussed in detail in Committee. I can understand that there might be circumstances where a parallel order of some sort might be in place, and this evening he used the example of control orders. However, as we discussed in Committee, it is highly likely that the police officer who authorises a domestic violence protection order will be aware of the history and of any other order to which the individual in question is subject. As we discussed extensively in Committee, the chances are that the police national computer will show up any other orders that are in place. The right hon. and learned Gentleman mentioned control orders. Currently there are 11 control orders in place, and there have been only around 43 to 45 in total. The chances of an individual being subject to a control order at the same time as being subject to a domestic violence protection order is therefore relatively remote, although I respect the way the right hon. and learned Gentleman has raised the issue.
I am grateful for what the Minister has said, but I think that he is accepting that if a court or other lawful authority had previously imposed a requirement that an individual should reside at, say, the matrimonial home, it would be inappropriate to make an order that had a contrary effect.
What I have said is, first, that the circumstances that I have described are likely to be a rare occurrence, and secondly, that the court will be fully aware of the circumstances and have those facts before it when making the order. Indeed, in the extremely unlikely situation that incompatible conditions were to be imposed by mistake, that would be taken into account by the police when enforcing the various conditions. I am not saying that such a situation would be impossible because, self-evidently, these things can happen.
If such a situation were to arise, however, it would be a mistake. Furthermore, all the information about the current obligations on an individual would be before the court, and my contention is that it would also be before the police before the domestic violence order was approved by the senior officer charged with approving it. I mentioned to the right hon. and learned Gentleman that, even if that were not the case, following our discussions in Committee—and following this debate tonight—no senior officer would approve an order unless they were certain that it was compatible with any other order that might be before the courts. I hope that he will therefore not press his amendment to a vote.
The Government support amendments 1 and 2, and I am grateful to my hon. Friend for tabling them. I hope that the House will accept them, and that the other amendments will not be pressed to a Division.
I appreciate the fact that my right hon. Friend the Minister has accepted amendments 1 and 2. I would also like to put on record my appreciation of the fantastic work that the NSPCC does around the country, and of all the other charitable and third sector organisations, as well as those in the statutory sector, that do so much work to support people suffering domestic violence.
I should like to respond to the points about the courts raised by the hon. Member for Woking (Mr. Malins). The pilots will have to take on board these points and thoroughly explore them in order to ensure that no one could be required to leave the matrimonial home and then have to go through a lengthy court wrangle. We need swift and effective justice, and I hope that the pilots will take that into account.
The right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) made some good points about the interrelationship between children and under-18s in families. Ultimately, this is a test of this House and of all of us as Members of Parliament, and it is a poor look-out if we cannot protect the most innocent, vulnerable people in our communities. I hope that, in accepting the amendments, the House is demonstrating that it takes seriously its responsibilities to the most vulnerable in our society.
Amendment 1 agreed to.
Conditions for and contents of a domestic violence protection order
Amendment made: 2, page 74, line 34, after ‘consider’, insert—
‘( ) the welfare of any person under the age of eighteen whose interests the court considers relevant to the making of the DVPO (whether or not that person is an associated person), and’.—(Mr. Flello.)
Powers of court on breach of injuction by respondent under 18
Amendments made: 17, page 79, line 2, leave out ‘representations made’ and insert
‘a report made to assist the court in that respect’.
Amendment 18, page 79, line 8, at end insert—
‘( ) Where the court makes a detention order under sub-paragraph (1) it must state in open court why it is satisfied as specified in sub-paragraph (7).’.—(Mr. Hanson.)
Extension of licensing scheme
With this it will be convenient to discuss the following: amendment 56, page 92, line 3, leave out ‘or to both’.
Amendment 57, page 92, line 5, leave out ‘five’ and insert ‘two’.
Amendment 58, page 92, line 36, at end insert
‘and the occupier is aware that such activities are being carried out and that they are activities to which paragraph 3 or 3A of Schedule 2 apply’.
Amendment 59, page 92, line 39, after ‘section’, insert
‘and the occupier is aware of that fact’.
Amendment 61, page 93, line 19, after ‘any’, insert ‘culpable’.
Amendment 60, page 95, line 30, at end insert—
‘(c) that demanding or collecting a charge as a condition of the release of the vehicle was in all the circumstances unfair or unreasonable.’.
The amendments fall into three categories. The first covers amendments 55 to 58, the second encompasses amendments 59 and 61, and the third takes in amendment 60. I shall deal with them separately. Amendments 55 to 58 are designed to alter the penalties that can be imposed in respect of offences attributable to wheel-clamping. In substance, I do not think that a sentence of imprisonment should be available in the magistrates court. So far as the Crown court is concerned, the maximum sentence should be two years, not five years. That would be the consequence of amendments 55 to 58.
The justification for that view is as follows. First, we have an overburdened prison system, and we are constantly urging the courts not to send people to prison unless it is absolutely necessary. For that reason, we should be very slow to impose the potential of prison sentences for offences. These offences can be tried either summarily or on indictment. Those tried summarily—that is, in front of a magistrates court—are in my view offences that should not attract a prison sentence by definition, because they will in any event be trivial ones. However, if the prosecution authorities believe that the offence is a serious one—for example, it is a continued offence: that is, one committed previously by the organiser—that person can be tried on indictment. Although I have reservations about this, I accept that there may be some circumstances in which a prison sentence is appropriate, but it seems to me that two years rather than five are quite adequate.
I have a strong suspicion that the Minister will say in response that if we look at other relevant legislation, we will find that five years is treated as the maximum for those other offences. All I would say to the Minister is that if someone sins once, it is not a reason for sinning again. I am against five years on principle, notwithstanding the fact that some previous decision might have been made in a contrary way.
Amendments 59 and 61 are designed primarily to ensure that offences are committed only where there has been what lawyers describe as appropriate knowledge or mens rea. Amendment 61 deals with corporate bodies and neglect. The present drafting makes it an offence for the corporate body where there has been neglect. “Neglect” means no more than omission, which by itself, in my view, should not constitute a criminal offence. There may be circumstances where it should, but not by definition. The word “culpable” is designed to ensure that only omission or neglect that is truly criminal-worthy should be caught by the Bill. “Culpable”, then, would ensure that mere oversight cannot be held to constitute a criminal offence; that is the purpose.
As for amendment 59, I am basically always against strict or absolute offences, so my drafting is designed to ensure that the occupier commits an offence only if he is aware or has knowledge of the underlying facts that show that the operator is acting unlawfully. At present, the drafting allows the occupier to be held liable criminally, even in the absence of specific knowledge. It is thus a strict or absolute offence, so I am against it.
Amendment 60 deals with issues of appeal. The current drafting is largely procedural. I am not saying that the requirements are exhaustive—they may not be—but what is contemplated by this part of the Bill are procedural defects. What I have in mind is that the appellate authority should be able to review on the merits whether or not the charge is appropriate. We dealt with a number of examples in Committee—some from the Liberal Democrats—of people who were marooned by snowstorms and were obliged to leave their vehicles in a particular place. A charge was levied and nobody would remove that charge, which is clearly unfair. I want to be sure that the appellate authority has the ability to form a view on the merits as to the justice or reasonableness of the levying of the charge. If the appellate authority comes to the view that it is unreasonable or unjust, it should be within its discretion to reverse the previous decision. I do not think that the Bill as drafted makes that crystal clear, and I am in favour of it so doing.
I think we all welcome the substance of what the wheel-clamping measures are intended to achieve. During an extensive debate in Committee, we covered many of the points made by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), among others.
I think that every Member has encountered constituents who have been clobbered by cowboy clampers, and we are pleased that the Government are attempting to deal with the problem. Because of the shortage of time I will not give all the examples that many of us could probably recite on the basis of constituency experience, but I should like the Government to consider some of the points made so eloquently by my right hon. and learned Friend.
Of course we want appropriate sentences for those who are found guilty of illegal clamping under the new law. When we debated in Committee the question of whether prison sentences were appropriate, I agreed with my right hon. and learned Friend that a two-year sentence was sufficient. We did not agree on every point, but we agreed on that one. I still think that two years constitutes a legitimate maximum, but I also agree with my right hon. and learned Friend that it is a sentence that we should be slow to impose. I do not think that a prison sentence should be imposed lightly and without due attention to detail.
Does the hon. Gentleman agree that if intimidation, extortion, violence or some other harassment were involved in the collection or releasing of a car, those offences could be dealt with under existing laws? We do not need a five-year sentence, and a sentence of two years strikes me as a considerable penalty for clamping offences alone.
No doubt the Minister will respond shortly, but I agree that two years should be the maximum and that a five-year sentence is excessive.
As my right hon. and learned Friend said, the insertion of the word “culpable” would clarify the difference between the deliberate commission of an offence and an oversight, which, as we all know, can happen in such circumstances. He also spoke of the merits involved in a particular situation. In Committee, the hon. Member for Winchester (Mr. Oaten) described the clamping of his constituents’ cars when the signs were covered by snow.
We need a system that would allow individuals to appeal and the authorities to take a sensible view based on the circumstances and on all the facts rather than necessarily following the legislation to the letter. We need flexibility and sensible judgment. My right hon. and learned Friend has made a number of sensible observations which the Government will doubtless consider, and to which the Minister will no doubt respond tonight.
The Government are trying to introduce a complex and bureaucratic procedure to deal with the problem of wheel-clamping on private land, which is often carried out by cowboys who are effectively indulging in extortion. We made that point in Committee, and experienced a glorious defeat by one vote. It would be much simpler to follow the Scottish procedure and simply outlaw wheel-clamping on private land.
Let me say in response to the hon. Member for Chesterfield (Paul Holmes) that we had an extensive debate in Committee, and our proposals were subjected to extensive consultation. A variety of suggestions were made, including the banning of wheel-clamping. In Committee we discussed ticketing systems, and I made it clear then—as I will this evening—that we wished to license the companies that were involved in clamping. We believe that private landowners have a right to protect their land, and that although a system exists to enable them to do so, in some instances it works very badly. We therefore propose to introduce a licensing system. We have considered the proposals, but we believe that, on balance, we have got this right.
The right hon. and learned Member for Sleaford and North Hykeham has been extremely consistent in his argument, and I am sure he will not be surprised to learn that I shall be consistent in mine. As I promised in Committee, I have reflected on what he has said, but the main reason why we have decided not to change our position is that we want a consistent approach to other areas that are similarly licensed. The right hon. and learned Gentleman calls this heresy, and says he would not choose it as a starting point, but I want to set out our point of view.
Amendments 55 to 57 would remove the option of imprisonment on summary conviction in a magistrates court and would reduce the maximum term of imprisonment on conviction on indictment from five years to two years. It is unclear from the short debate this evening why the proposal is for two rather than five, except that two is less than five. The right hon. and learned Gentleman described that as adequate, but what might be adequate for some will not be adequate for others, and that is the difference between us on this matter. The provision as currently drafted provides for penalties that are directly in line with those contained in section 5 of the Private Security Industry Act 2001 for the offence of using unlicensed security operatives.
That is what this is about; it is not about whether or not a vehicle has been clamped properly, or even the methods that might be used and how the law might be brought in in other ways. The right hon. and learned Gentleman talked about that, and what he said was right, but this is about using unlicensed security operatives, and I fear that if we begin to pick at that, we will end up in a situation where there is no consistency, and where there is a lack of transparency and fairness. The right hon. and learned Gentleman and I start from different sides; we accepted that in Committee, and I acknowledge that again tonight.
I acknowledge that many of the cases—I hope all of them—that fall foul of these provisions will not warrant imprisonment. That will depend on how successful these provisions are, but offences against business licence requirements and the terms of the licence could be very serious. That is why we seek to retain imprisonment as a necessary option for the worst offences. Again, these penalties are consistent with those contained in section 5 of the 2001 Act for the offence of using unlicensed security operatives. Individuals involved in wheel-clamping are currently subject to those provisions, and there would be a problem in having the businesses subject to different penalties from the individuals involved in wheel-clamping. The right hon. and learned Gentleman calls this heresy. We simply disagree on the route to take to arrive at these decisions.
Amendments 58 and 59 would require that, in order to be guilty of an offence—under proposed new section 6(1A) of the 2001 Act, as introduced in clause 42— of allowing an unlicensed wheel-clamping business to work on his premises, the occupier of those premises must know that the business is carrying out licensable activity without being licensed. As we set out in Committee, we believe that what these amendments seek is already provided for in the 2001 Act, as it already provides a defence for the occupier that he either did not know or had no reasonable grounds for suspecting that the individual in question was not the holder of a licence, and that he took all reasonable steps to ensure the individual did not carry out licensable activities when he did not hold a licence. Although the point of these amendments is clear and useful, I hope it will be recognised that their provisions are already catered for in legislation.
Amendment 61 would raise the threshold for liability for an offence committed by an unincorporated association, but why should businesses of different models be treated differently under the law? Amendment 60 deals with the issue of appeal. In our proposals, there is already an avenue for appeal for motorists in respect of release fees imposed by businesses carrying out wheel-clamping and related activities, and that would include issues such as release fees, the length of time taken, and adequate signage. Therefore, we do not see the need to accept these amendments.
The right hon. and learned Gentleman made a point about the appellant authority. We are seeking to base this upon the ticketing tribunal that already exists, where people with a legal training act as adjudicators in such cases, and there are—
Debate interrupted (Programme Order, 18 January).
The Deputy Speaker put forthwith the Question already proposed from the Chair (Standing Order No. 83E), That the amendment be made.
The Deputy Speaker then put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83E).
Offence of possessing mobile telephone in prison
Amendment made: 19, page 96, line 31, leave out from ‘security)’ to end of line 36 and insert—
‘(a) in subsection (1)(b), for “or any sound” there is substituted “, sound or information”;
(b) in subsection (3), paragraph (b) and the preceding “or” are repealed;
(c) after subsection (3) there is inserted—
“(3A) A person who, without authorisation, is in possession of any of the items specified in subsection (3B) inside a prison is guilty of an offence.
(3B) The items referred to in subsection (3A) are—
(a) a device capable of transmitting or receiving images, sounds or information by electronic communications (including a mobile telephone);
(b) a component part of such a device;
(c) an article designed or adapted for use with such a device (including any disk, film or other separate article on which images, sounds or information may be recorded).”’.—(Mr. Hanson.)
Amendment made: 20, line 5, leave out ‘of mobile telephones’ and insert
‘and use of electronic communications devices’.—(Mr. Hanson.)
On a point of order, Mr. Deputy Speaker. You will have noticed that that the only issue of real substance that we have not had time to discuss today is the amendment that stands in my name, which raises the cap on the criminal injuries compensation scheme for those of our constituents who have been blown asunder by terrorist outrages. So I hope that on Third Reading I will be able to keep in order so that I can raise that issue and seek an assurance from the Government.
I am sorry that the right hon. Gentleman’s amendments were not reached, but we were acting under the Standing Orders of the House. He will be aware that the only thing that can be debated on Third Reading is the contents of the Bill, but he is a very experienced Member of this House so I shall listen carefully to what he has to say.
I beg to move, That the Bill be now read the Third Time.
I thank the hon. Members for Hornchurch (James Brokenshire), for Romford (Andrew Rosindell), for Carshalton and Wallington (Tom Brake) and for Winchester (Mr. Oaten) for their constructive role in the debates on Second Reading and in Committee. I wish to place that on the record because as a result of our debates we have introduced amendments that have helped to improve the Bill. That is not to say that there are not real differences between us—there are and there have been—but it is incumbent on me to place my thanks on the record initially.
If you would allow me, Mr. Deputy Speaker, I should also like to place on the record my thanks to my hon. Friend the Member for Stockton, North (Frank Cook) and the hon. Member for Macclesfield (Sir Nicholas Winterton) for their chairmanship of the Public Bill Committee. I also wish to thank the Under-Secretary of State for the Home Department, my hon. Friend the Member for Tynemouth (Mr. Campbell) and my hon. Friend the Member for St. Helens, North (Mr. Watts), for helping in the passage of this Bill, along with all the members of the Committee, who have contributed to the Bill.
The Bill will protect communities by ensuring that we take action on a number of key issues. I believe that not because the Government have failed on tackling crime—I do not believe that we have; we have had a strong record on tackling crime and disorder since 1997, as witnessed by the fact that when we entered the Public Bill Committee crime had fallen by 36 per cent., violent crime had fallen by 41 per cent., the amount of woundings had fallen by 42 per cent., the level of robbery had fallen by 19 per cent., muggings had decreased by 10 per cent., and domestic violence had fallen by 64 per cent. Indeed, as we considered the Bill crime figures were released which showed that confidence in policing had increased to 50 per cent. and that the chance of someone’s being a victim of crime was at its lowest since records began.
I am very proud of the fact that we had a very strong message to deliver on tackling crime before the Bill, but during its passage we have explored some issues that will make society safer still and will build on the record of the past year, during which violence has decreased by 4 per cent., robbery has fallen by 13 per cent., domestic violence has decreased by 15 per cent. and wounding has fallen by 2 per cent. All that has happened in the past year alone. That has something to do with the record number of police officers and police community support officers on our streets, but it is also down to legislation that has been passed previously and the partnership work with local authorities.
This Bill will do several key things. It will make our streets safer by allowing families to take responsibility for their children’s antisocial behaviour, by assessing parental needs when young people are considered for an antisocial behaviour order and by imposing parenting orders where they have breached their ASBOs. It will make our streets safer by enabling, in pilot form initially, and thereafter rolled out across the country, the use of gang injunctions to prevent young people under 18 from becoming involved in gang activity. It will help the police to make our streets safer not only by allowing record numbers of officers to patrol our streets more safely—we now have 142,688 police officers, an increase of 16,863 in the past 13 years—but by freeing up police time by tackling the issue of stop and search forms in clause 1. We also have record numbers—some 16,000—of police community support officers.
The Bill will prevent crimes against the vulnerable by allowing the piloting of domestic violence protection orders, which, added to the range of domestic violence legislation that we have introduced, allow police officers to require perpetrators threatening individuals in their property to leave the premises for a fixed period, empowering victims to feel safe. When the pilot scheme is rolled out, we will take that a step further and extend the measure across the country as a whole.
The Bill enables us to take steps—this has not featured in the debates to the extent that we would have liked—to ensure that air guns are safely locked up and out of reach of children, preventing senseless tragedy through the improper storage of those dangerous weapons.
The Bill will also shut down criminal and exploitative markets by preventing the use of unauthorised mobile phones in prisons. That is something that we have tried to do in the past, and we are working hard to make sure that we tie up this loose end. I am grateful for the help and support of the Opposition in those debates, and we have made amendments 18 and 19 this very evening.
The Bill will, thanks to a great deal of campaigning by the Under-Secretary of State for the Home Department, my hon. Friend the Member for Tynemouth, license wheel clampers in order to prevent unscrupulous companies from exploiting citizens by imposing exorbitant fines.
Crucially, the Bill will also ensure justice for victims and their families. Not only do we have in place a scheme for compensating victims of terrorist activity, in which I know my right hon. Friend the Member for Birkenhead (Mr. Field) will be taking an interest, but we are putting in place a scheme to compensate victims of overseas terrorism, which from 18 January will ensure that in the hopefully uncalled-for event of future terrorist activities abroad, victims from Britain will be compensated on a par with those affected in the United Kingdom.
The Bill also deals with the DNA database and how we approach the use of DNA to ensure that we convict offenders who are guilty of heinous crimes, that we prevent heinous crimes and that we give justice to victims’ families in doing so. That is where the real difference between us has been in these debates. We have had debates on antisocial behaviour, mobile phones in prisons, gang injunctions and compensation for victims of terrorism. Ultimately, it is on the question of DNA that we have had the major difference in Committee and on the Floor of the House.
I have considered the matter extremely carefully and I still come to the conclusion that the hon. Members for Hornchurch and for Eastleigh (Chris Huhne) are on the wrong side of the argument for giving justice to victims and for ensuring that people who could and should be in jail for serious crimes are in jail. [Interruption.] The hon. Member for Epsom and Ewell (Chris Grayling) is chuntering on the Front Bench about this serious issue. If he wants to intervene, I will happily give way. If he intervenes, I will say to him, as I have already said to his colleagues, that he is on the wrong side of the argument. I am absolutely amazed that the party which for so many years called itself the party of law and order will not allow the use of DNA for between three and six years to bring to justice people who have committed terrible crimes and indeed to prevent future victims by ensuring that people are in jail earlier than they would have been if we did not have the provision in place.
I accept that we have had to make judgments; that is one of the balances that ministerial life brings. I accept that there will be some people on the DNA database who have not committed a crime, who are innocent, who will remain innocent during the six-year period, and who may never commit a crime, but if I have to balance that against potentially bringing to justice somebody who has committed a serious crime and could commit further serious crimes, and bringing justice to victims, my hon. Friends and I will be on the side of victims and ensuring that justice. We will have to accept the consequences, which are that some individuals will feel aggrieved.
On DNA, we have tried to fulfil—and, I believe, are fulfilling—our legal obligations under human rights legislation both in this House and abroad. We are looking at whether we can meet the requirements of the Marper judgment, and we are in discussion with the Council of Ministers. The Liberal Democrats and the Conservative party take honourable positions on the subject, but I believe that the people outside this building will be on the side of the Government. We have a clear position on bringing individuals to justice, and on justice in relation to those issues. The hon. Members for Hornchurch, and for Eastleigh, have put their positions strongly, but at the end of the day, they are simply not ones that I believe that the House will support.
I hope that the hon. Member for Hornchurch fulfils his commitment and votes against the Bill this evening. He has argued against it all the way. I say to him: see that through. In voting against Third Reading, he will be voting against not just the DNA provisions. In turning down the Bill tonight, let the Conservatives vote against the provisions on mobile phones, wheel-clamping, antisocial behaviour, and gang injunctions—serious issues. We believe that the provisions will help to prevent further crime.
Let me say in these proceedings on the final crime Bill of this Parliament that this Labour Government’s record has, in every constituency, been one of reduced crime, of less chance of being a victim, of stronger confidence in policing, and of ensuring that we deal with justice in an effective way, on behalf of the victim and the service recipient, not on behalf of the criminal. The measures strengthen that will and look forward to the future, and I commend them to the House.
I have previously described this Bill as the Christmas tree Bill to top all Christmas tree Bills, with more bits dangled off it than legislative branches to hold it all together. Indeed, with a Ways and Means resolution and an instruction motion having been required from the House even during Committee, the Government have been forced to do some significant building work even as the Bill progressed.
Coming as it does on top of all the criminal justice Bills that the Government have introduced, this is a hotch-potch of a pre-election Bill, with a broad spread of unconnected measures cobbled together without giving any meaningful sense of an overarching strategy, purpose or direction on the part of the Government. It takes us from car-clamping to clamping down on mobile phones in prisons; from domestic violence to the non-domestic human impact of terrorist actions abroad; and from stop-and-search to stopping some licensed premises from opening in the small hours of the morning.
For a Government who are rightly criticised for box-ticking, they have certainly excelled themselves in trying to tick the boxes of as many different interest groups as possible. In some instances, the significant problem for the Government is that they have not ticked the boxes when it comes to ensuring that the measures are proportionate and sustainable, and will make a difference.
As a result of the speed with which the Bill has been put together, questions remain as to whether a number of the provisions will actually work. As we have heard this evening, the youth gang injunctions import a whole new concept—the concept of the civil courts having sanctions, including youth custody, which was previously reserved for the youth courts. That is intended to be tested not through legislation, but through a pilot. The interrelationship between domestic violence notices, domestic violence orders and other parallel criminal provisions appears potentially problematic, and the practical application of the measures appears to have been put off, again to allow for the proposed piloting of the measures. It has certainly been the hallmark of this Government that they appear to have more pilots than a number of airlines.
Then, there is the question of what practical or meaningful difference other provisions will make. The mandatory parenting orders of children who breach their ASBOs would appear to apply only to a small handful of parents who have already been considered unsuitable for a parenting order. The new criminal offence of a person failing to take reasonable precautions to prevent a minor from having an air weapon is so subjective that it is difficult to see the Crown Prosecution Service making a number of cases out, however desirable that might be. The apparent new rights for councils to stop licensed premises opening from 3 am until 6 am overlooks the fact that most of the binge drinking leading to problems for the police and ambulance service in the small hours of the morning will have occurred much earlier. In any event, the hurdle that councils have to climb even to use the powers seems, as we have heard tonight, to make them virtually impossible to use.
The Government have brought forward reasonable proposals, such as those on the bureaucracy behind the recording of stop and search and on regulating the unacceptable actions of car clampers, but Her Majesty’s Opposition have been calling for such measures for some time. We have sought to be constructive in trying to improve the measures in the Bill. To be fair to the Minister and to his earlier comments, we recognise that the Government have been prepared to accept a number of the points that we have raised. I want to put on record my thanks for the support that I have received from my hon. Friend the Member for Romford (Andrew Rosindell). He has proposed a number of constructive measures, notably on the definition of mobile equipment in prisons. We are pleased that the Government recognised and accepted that proposal through the amendments tabled tonight.
We have sought to make improvements and to make changes such as ensuring that the police can take DNA samples from those in this country who have been convicted of offences overseas, improved the accountability of the DNA strategy board to Parliament, and clarified the requirements for the court in considering a gang injunction to receive a pre-sentence report from the youth offending team and for the court to give its reasons in open court should it believe that a sentence of detention is appropriate for a breach of those orders by young people. Despite those improvements, in our judgment the Bill needs further careful and close scrutiny.
Despite our misgivings about the effectiveness and enforceability of a number of the provisions contained in the Bill, we would be prepared to let them pass, but the issue of principle on DNA retention remains. As the debate earlier showed, there are strong feelings in the House. We believe that the Government’s proposals as set out in the Bill fail to strike the right balance between the rights of the individual and the collective right to protection from crime. We believe that the Government remain on the wrong side of the argument.
We have set out our position on a workable solution to deal with that issue which protects the public and respects the concept of innocent until proven guilty. We believe that to be a pretty fundamental concept that should not be discarded lightly. Despite the Government’s best efforts to bring forward cases to prove the contrary, they have not succeeded.
The Bill has no chance of being considered fully by the other place and therefore can only become law through the wash-up process. It will therefore require co-operation if it is to have any chance of becoming law. Let me be clear: we will not allow the Bill to proceed in the other place with the Government’s proposals in their current form. In our approach to this Bill, we have sought to move things forward and even at this stage the Government have the opportunity to adopt a similar approach on this issue. The Home Affairs Committee’s report has produced a number of interesting recommendations on an all-party basis. It was interesting to note that the Chairman of that Committee, the right hon. Member for Leicester, East (Keith Vaz), talked about the need for consensus to try to move things forward on this issue, too.
We believe that the Government should reflect on that point, as we will too, and in the spirit of wishing other provisions on compensation for the victims of overseas terrorism, on car clamping, on domestic violence and on other matters to succeed, we would be prepared to meet the Government and other Opposition parties to discuss a way forward on an all-party basis after tonight and to see whether agreement can be reached. We will do that on the basis that we expect the Government to move from their rigid, authoritarian, big brother-database stance. In the spirit of reaching such an agreement, and as a mark of good will, we are prepared to let the Bill pass tonight, but they should be in no doubt that if there is no movement from them—if they insist on maintaining the measures on DNA retention—we will not hesitate to prevent the Bill from making further progress. The Government would then, by their actions, have stopped other important measures that could do a great deal to protect the interests of our communities and our constituents, and that would be on their shoulders.
I rise to give almost unqualified support to the Bill. Given the list of measures for which the Government seek powers I find it strange that the Opposition have deserted their traditional role on law and order. I thought that my right hon. Friend the Minister for Policing, Crime and Counter-Terrorism was already reaching across to the Opposition in the spirit of compromise when he said that the measures would be supported strongly by our voters around the country. The list that he read out will probably be supported even more strongly by Tory voters than by Labour voters, so if the Opposition wish to play funny things with the Bill, the electorate will have that very fresh in their minds when they come to vote, we hope, in May.
I said that I am giving the Bill almost unqualified support because I am bearing in mind the fact that I cannot speak to measures that are not in it. I had hoped that there would be a further adjustment in the criminal injuries compensation measures in the Bill, which my right hon. Friend has pointed out is the last crime Bill of this Parliament. I welcome what the Government are doing in extending the measures to people who are on the wicked receiving end of terrorist outrages when they are going about their business or holidaying abroad, but there is a related issue that we cannot settle in their lordships’ House and that will not be dealt with in the wash-up period, although I had hoped that it would be, so we will need to return to it some day.
I have a constituent who was brutally blown apart by the July bombings in London. Although he, his wife and his family are given measured support under the existing scheme, there is a cap of £250,000 on the scheme. I am talking about someone whose bravery is beyond description. His legs were blown away, and his life and the lives of his wife and family have changed in a way that is difficult for us even to contemplate. The current scheme, welcome as it is, has a cap, and there is no way that we can put my constituent’s life nearly back to what it was before those wicked bombers detonated those bombs, so affecting him and many other of our constituents from around the country, but particularly from London. I hope that we can get an undertaking from the Government that when the Bill is properly discussed in the other place—we have quite a lot of time before the election will be called—the Government will consider the proposals to raise the cap to £2 million, as well as the proposals that were previously put to my right hon. Friend the then Home Secretary, who is now the Justice Secretary, about how that small but important increase could be met through our national insurance scheme. I am not part of the campaign that thinks that we can propose measures without saying where the money should come from.
So it is with nearly good heart that I support the Bill tonight. It addresses a huge number of issues on which our constituents are grateful that the Government have, practically in each year of this Parliament, listened to them and weighed in on their behalf against people who do bad deeds in our communities and across the country. My only regret is that although I have welcomed all those other measures, I cannot welcome the Bill wholeheartedly because there is one gap in it. It was the one issue of substance which, for very good reasons, we did not have time to debate on the Floor of the House. I hope that it will be debated properly in the other Chamber, and I hope that when it comes to the other place, the Government will look seriously at the amendments that I tabled, but which could not be called this evening.
I shall be brief, because we have made our position clear as we have debated the various groups of amendments this evening. The Bill is the usual random collection of measures—very much an omnibus Bill. Some are more unpalatable than others, and there are some good aspects which we have been pleased to support, such as compensation for the victims of overseas terrorism.
The big problem for us—one which, as I understand it from the speech of the hon. Member for Hornchurch (James Brokenshire), the Conservatives also have—continues to be the DNA provisions. I have spoken at length about them today so I shall not do so again, except to reiterate that we do not have a unicameral legislature in this country. The other place will scrutinise the Bill.
Once the legal expertise in the other place gets its teeth into the Bill, the chances of its agreeing the DNA provisions tabled by the Government are risibly small, not least because it is clear that there will be another appeal to the European Court of Human Rights and another judgment against the Government. I do not know of any serious independent human rights lawyer who believes that the proposals are consistent with the European convention.
There are many good things in the Bill, however, including the provisions on communication devices in prisons, air weapons and compensation for victims of overseas terrorism. For that reason, we do not intend to divide the House tonight, but I repeat the point made by the hon. Member for Hornchurch: if the Government are to get a long-lasting reform to the DNA database through both Houses, they will have to compromise. At this stage of the electoral cycle, with the Bill heading inexorably for wash-up, it would make sense to have the all-party discussions that the hon. Gentleman suggested in the hope that we can reach some compromise and solution.
My party’s proposal is that there should be a clear dividing line between innocence and guilt for those who are on the DNA database. We will compromise, however, and I hope the Government will do so as well. The Scottish system has the enormous benefit of being tried and tested, and the world has not ended north of the border. Indeed, the justice system north of the border seems to be rather effective and, in many ways, in better health than in England and Wales. I therefore commend that solution to Ministers when they are considering what they can realistically get through both Houses.
With the leave of the House, may I respond to the points made by my right hon. Friend the Member for Birkenhead (Mr. Field)? As he will appreciate, it is difficult to legislate retrospectively on those matters, but I will draw his remarks to the attention of my right hon. Friend the Home Secretary.
Question put and agreed to.
Bill accordingly read the Third time and passed.