House again in Committee.
13: Before Clause 10, insert the following new Clause—
“Report on fingerprints and samples
(1) The Secretary of State shall, within six months of this part coming into force, publish a review setting out—
(a) the circumstances in which fingerprints and samples can be taken without consent;(b) the circumstances under which and purposes for which fingerprints and samples, taken with or without consent, may be retained;(c) the circumstances under which information relating to fingerprints and samples may be shared with bodies other than the collecting agency; and(d) the circumstances in which information relating to fingerprints and samples are destroyed.(2) In this section, “fingerprints and samples” includes DNA samples or profiles.”
The noble Baroness said: We now come to a very important part of the Bill, the power to take fingerprints and samples. By definition, the samples are DNA. It is therefore extremely important that we are really clear what we are talking about in the Bill regarding the taking of those samples and their maintenance.
Powers are being given in the Bill that are immediately transferable to any other criminal situation. This is the Counter-Terrorism Bill. Is it anticipated that the powers to be taken here should relate only to counterterrorism or can they be seen across a wider spectrum? We are assuming that they will be across the wider spectrum. In any event, if they are not, the legislation regarding samples needs to be tied up.
The current database for DNA, in particular, is incoherent, incomplete and completely illogical. Not everyone who has been found guilty of an offence is on it, while some who are completely innocent are. There is widespread ignorance and confusion about the use of the information and the rights that individuals have to get themselves removed from a database once they are on it. Under Clause 10, that information will have to be maintained on the database.
That is compounded by inconsistent and disproportionate application of the requirements to destroy information that has been obtained. My two amendments seek clarification on where we are now; the consistent and transparent application of current legislation, to which I just referred; and the proper parliamentary scrutiny of any future changes.
Periodic recommendations from senior sources, including judges and police officers, that the database should be extended to every person in the United Kingdom show just how far the current method of legislation by salami-slicing could go. Government policies, such as the identity card database, show that the appetite for control could be increased. At the same time, the losses of financial and personal information that we have come to expect with depressing regularity from government departments show how little we can trust public bodies to hold such important information safely.
A loss of information from the DNA database on the scale of the loss of child benefit information last year would be catastrophic. Unlike bank accounts, you cannot change your DNA. Once the information is lost or is in the wrong hands, it cannot be regained. The Minister might like to take this opportunity to lay out how widely the Government would like the DNA database to extend. Can he give us a categorical assurance that there is no intention to expand it deliberately to retain innocent people’s DNA?
Our amendments would require a clear assessment of where we are now. Having failed to provide for a proper debate on the matter, the legislation surrounding the DNA database is scattered over several Acts, orders and codes. The Bill will be a further Act. For example, Section 64 of the Police and Criminal Evidence Act 1984, concerning the destruction of fingerprints and samples, has been amended five times since then by legislation. It has been amended by, first, the Criminal Justice and Police Act 2001, secondly, by the Serious Organised Crime and Police Act 2005, thirdly, by the Criminal Justice and Public Order Act 1994, fourthly, by the Criminal Justice Act 1988 and, fifthly, by the Police Act 1996.
Somewhere in the Home Office, I am sure that there are officials who know all the information that Amendment No. 13 would require to be published. However, that grasp of a complex and ever-changing area is not widely shared. This country already has the largest DNA database in the world. How many people are currently on it; how many of those who have never been convicted of a crime are on it; and how many people will be added every year? The Government’s own Ethics Group appreciates this problem; its Recommendations I and J state that there should be further public clarification of the role of the database and that the possibility of a universal repository should be categorically denied.
There is inconsistency with Europe. The inclusion of innocent people on our database not only intrudes on their privacy at home. Police forces in Europe and around the world share information on suspects. This flow of information is likely to expand even further under EU law. On other EU databases, innocent people are not included. If you were to ask the Spanish force for information on a certain person and it responded positively, you could be sure that such a person had a criminal record. The same is not true in the other direction. Our police forces can pass over information on innocent people, the very existence of which indicates a criminal record in the minds of the foreign forces. The fact that these people are on the database automatically gives rise to the assumption of criminality. Have the Government taken steps to ensure that, when such information is handed over, the recipients are fully aware of the arbitrary nature of our database? Do they realise that the unfortunate subject may be guilty of nothing more than a desire to be helpful during the investigation of a crime?
On the right to destroy, the general confusion over the database extends to ignorance over the rights that an individual has in regard to it. How many people know that they can request to have their information destroyed if it has been voluntarily given during the investigation of a case? How many people even think to check what information is held on them? The Government have in past years thrown their support behind increasing awareness of just how important it is to check one’s credit history to ensure that mistakes are corrected and identity theft prevented. Yet they are strangely silent on whether people should exercise the same caution over their DNA. Even when a person makes the request, a chief constable can refuse to destroy the information, with no justification and no consistency.
The Ethics Group has made recommendations in this area. It has not only restated the principle set out in primary legislation that information will be destroyed by default when the investigation has ended but emphasised the need to clarify the exceptional circumstances in which this principle can be broken. Our amendment seeks clear national guidelines on this matter. This debate should be only the start of this. We need a well informed and widespread debate, which includes the public as well as Parliament, on resolving these matters. The proposed new clauses are just one more gesture in trying to resolve the problem of adding to the data that are already being taken. Fingerprints fall into the same category. People’s fingerprints are now being taken all over the place, and they do not know what they are being used for and whether that information is being passed on.
One understands that DNA may be helpful in counterterrorism, but it is seriously not helpful that this information should be kept indefinitely and can be used widely, passed on without consent and without the knowledge that it is being passed on. We already know that the EU has enhanced ideas about DNA transfer and that there are suggestions that children should have their DNA taken at birth. We are building up a database of the whole community that could be used against any members of that community if held in the wrong hands.
This legislation gives us a good opportunity to raise this matter. We want to know whether the powers taken here relate to information already on the general DNA database or to information that will be added to it, and what limitations there will be in maintaining and preserving it. I am sure the Minister will agree that liberty, apart from anything else, is an extremely important aspect and that we in Parliament need to be ever mindful of the fact that the legislation that we pass can be as embarrassing to innocent people as it is to the guilty. We must ensure that the innocent are not jeopardised. I beg to move.
I support the amendment moved by the noble Baroness, Lady Hanham. At the beginning of her introduction to this important amendment, she mentioned the misuse of this legislation. I draw the Minister’s attention to the report in the Financial Times today—he may already be aware of it—that the Treasury used anti-terror powers to freeze Landsbanki’s assets in the United Kingdom. I realise that the Committee will not want to get into a debate on the financial crisis at the moment, but that bit of it must be commented on today. Is it true that the freezing order was issued under the Anti-terrorism, Crime and Security Act 2001, which was passed after the September 11 attacks? If it was, the Government are doing something very serious: using completely inappropriate anti-terrorism powers that they already have, because there was no suggestion that the Icelandic bank was involved in terrorism or other crime. I leave that question with the Minister, and I hope that he will have an answer for me by the time we finish this debate.
I absolutely agree with the noble Baroness, Lady Hanham, that the matter of taking and using DNA must concern us all. I am sure that the Minister has the answer but, as far as I understand it, 1 million people, almost all of whom are innocent, are currently on the DNA database. Whether they can come off the database is entirely at the discretion of the chief constable. The Minister will know, because I have asked a number of Written Questions about this in the past few months, that there are very few examples of chief constables deciding to remove anyone from a database. Indeed, it is hard to imagine that that would ever be a priority for them, given all the other priorities that they have on their desk. They would have to review the whole file, and they are not going to be very fast at removing innocent people from the database. That includes people who gave their DNA voluntarily to help the police to solve cases. This is a disincentive for people to volunteer their DNA in the future, and is one reason why the Government may choose to review this whole situation. People who have been acquitted of a crime also remain on the database. One of the fundamental tenets of British justice is “innocent until proven guilty”. If someone is acquitted, they are deemed to be innocent. Nevertheless, they remain on the database.
The noble Baroness, Lady Hanham, mentioned all the implications there are now of sharing such databases in Europe, so I will not repeat what she said but will say simply that we on these Benches, too, have deep concerns. We will undoubtedly want to return to this subject on Report, because it has particularly deep implications for people who volunteer their DNA, as I have said. I am grateful to those on the Conservative Benches for tabling this amendment.
As the noble Baroness, Lady Hanham, has said, Clauses 10 to 18 seem to cover a very much wider field than the specific matter of counterterrorism. This must be of great concern to nearly all of us, as most of us are disturbed by the massive extension of the fingerprint and DNA databases to include a vast number of totally innocent people. I was pleased to hear the noble Baroness, Lady Miller, talk about returning to this on Report. If they do not get a satisfactory answer from the Government today, I hope that both opposition parties will combine on Report and press the matter to a Division.
I apologise for being late on this. This fingerprint business is something about which I feel very strongly; I have asked Questions in the House about it, especially about DNA samples. The Government’s collecting of everything in these vast databanks, particularly DNA databases, is a serious infringement on our liberties. DNA is disproportionately taken from young ethnic minorities, and if we want a proper society, that is not the way to go about it. The sooner this is brought under proper control, the better.
I have been concerned at the tone of this debate. I apologise to the noble Baroness that I did not hear her opening remarks, but I have listened to the responses, and there seems automatically to be an assumption that holding this material in databases is necessarily damaging to liberty. I should like to remind the Committee of the substantial number of instances in which cold cases have been solved because of data that can now be accessed through DNA databases and fingerprints.
As I understand it, the noble Baroness’s amendment simply seeks a clear statement of how the rules currently work. That would be helpful. I suspect that there is a lot of misinformation and confusion about how the current rules on fingerprints and DNA samples operate. Something which sets that out might be valuable in terms of the quality of public debate.
I thank the Committee for that input. It is clear that everyone in the Committee feels that this is a very complex area. There is a great deal of legislation involved. When this provision was discussed in the other place, it was accepted that there was a need for a much wider debate on the retention and use of fingerprints and DNA samples. Although I do not believe that this debate is the forum in which to do it, there is a need to have that wider debate.
Before I try to explain some of the detail in accordance with what my noble friend Lord Harris was saying—I may be able to expose some of the detail and show that it is not as worrying as some might think—perhaps I may just mention the issue of the Icelandic banks that the noble Baroness, Lady Miller, raised. The assets were frozen in a freezing order under Part 2 of the Anti-terrorism, Crime and Security Act 2001. That applies to all three of them. Freezing orders are not limited to terrorism, so it was not done under a purely terrorist measure. This measure came in because SOCA felt that it was needed for serious crime and things like that, as well as terrorism.
I was not here for that debate. That legislation does, however, include security. We can look in Hansard to find out exactly what was discussed, but the legislation covers anti-terrorism, crime and security. I will get back to the noble Baroness on her question.
I am sorry to press the Minister on this, but “security” here means personal safety and so on, not financial securities. The only possible link that I can see here is that the Metropolitan Police had, as I understand it, considerable assets in the bank.
I do not think that I can comment on that. I will have to go back to Hansard and look at what was discussed during the course of that Bill. I was giving the noble Baroness a clear statement on where the authority came from and what it was. We can look up this separate matter and go into it if we wish.
We have previously had a number of Questions in this House about the freezing of assets, and such questions also emerged when I was the Chancellor. Before the recess the noble Baroness, Lady Williams, asked a Question about freezing the UK assets of Mugabe and his cronies. I think that it would greatly assist the House if at some point we could have a clear statement on what powers there are to freeze the assets of anyone of a dubious nature, for whatever reason. It is a very murky area.
I agree with the noble Lord that it is. I would have to take advice on what can be said about it. We have diverted slightly from this amendment, but I will take the matter away to see whether anything can be done. We will be discussing asset freezing at a later date, so there will be an opportunity then.
The amendments would unintentionally suggest that the provisions would apply to all samples and fingerprints held by the police. As Members of the Committee will be aware, Part V of the Police and Criminal Evidence Act 1984 provides for the taking and retention of samples and fingerprints. The Act also clearly stipulates the purposes for which such samples may be used. The Committee may also be aware that an individual can request that samples or fingerprints held by the police should be destroyed. Such an application is made to the chief officer of the police area concerned and, while destruction is a matter for the chief officer, such a decision is subject to guidance issued by the Association of Chief Police Officers. The guidance, Retention Guidelines for Nominal Records on the Police National Computer, is available on the ACPO website.
I acknowledge the noble Baronesses’ sentiment in putting down these amendments but it is our view that the existing structure under PACE provides sufficient safeguards and protections for the individual. As Members of the Committee may be aware, the position on retention of fingerprints and samples is subject to consideration in a case, S and Marper, before the European Court of Human Rights. The Government have provided a robust defence in that case, and we await that decision from the Court.
However, in this amendment they unfortunately fail to take into account the key element that fingerprints and samples held on the counterterrorism databases are often obtained without the knowledge of the individual. That is the nature of investigating terrorism. It would be wholly inappropriate to compromise or indeed negate an investigation by giving any person a statutory power to require the police to disclose what information is or may be held by them. I will strongly resist these amendments as they will fundamentally change the system for the retention and use of fingerprints and samples, to the detriment of counterterrorist operations protecting our national security, as set out in this Bill.
The primary purpose of Clauses 10 to 18 is to make sure that retained samples can be used as effectively as possible. Clauses 10 to 13 provide equivalent powers, procedures and safeguards for the collection and use of fingerprints and non-intimate samples collected from those on control orders with those collected after arrest under the relevant legislation for the jurisdiction involved, such as the Police and Criminal Evidence Act 1984. Clauses 14 to 18 have three specific aims: putting a counterterrorism DNA database on a firmer legal footing; allowing fingerprints or samples taken under the Police and Criminal Evidence Act 1984 and the Police and Criminal Evidence (Northern Ireland) Order 1989 to be used for national security; and making it easier to allow fingerprints or samples taken under the Terrorism Act 2000 to be placed on the national DNA database. In Clauses 14 to 18, we are not creating any new powers to take fingerprints and samples.
Amendment No. 13 sets out the contents for the proposed report on fingerprints and samples. I do not believe that it is necessary to require the Secretary of State to issue such a report as the issues raised in the amendment are already dealt with. First, the report would require the Secretary of State to set out the circumstances in which fingerprints and samples can be taken without consent. That is unnecessary, as the situations where this can arise are already clearly stated in primary legislation, or will be with the passing of this Bill regarding control orders.
Subsections (1) and (2) of Clause 10 insert provisions into the relevant sections of PACE setting out clearly when fingerprints and samples can be taken from individuals without their consent. Equivalent procedures and safeguards that would apply in those circumstances will apply in relation to fingerprints and non-intimate samples taken from controlled individuals. In Clause 18, it is clearly set out how the police can obtain fingerprints and samples during covert operations under Part III of the Police Act 1997 and under Part 2 of the Regulation of Investigatory Powers Act 2000. Given the clear presentation of the situations where fingerprints and samples can be taken without consent, I see the first requirement of this report as completely surplus to requirements.
Secondly, the amendment proposes that the report contain the circumstances in which and purposes for which fingerprints and samples taken with or without consent may be retained. As with the first proposal, this is unnecessary, as the Bill and other primary legislation set out the purposes for which samples can be used. We are using this Bill to standardise the purposes for which fingerprints and samples can be used so that they may be used in the most efficient way possible. These purposes are: in the interests of national security, for purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution, or for the purposes related to the identification of a deceased person or of the person from whom the material came. So a report explaining the purposes for which fingerprints and samples may be retained is completely superfluous.
Thirdly, the amendment would require the report to cover the circumstances in which fingerprints and samples may be shared with bodies other than the agency collecting them. The terrorist threat requires both national and trans-national multi-agency co-operation. It is important that we are able to share our data with national and international partners so that we can properly protect our national security. For example, where we have an unidentified sample obtained covertly in this country from a person whom we believe to have attended terrorist training overseas, we must be able to cross-check that sample with those held by the country where the training is thought to have taken place. Noble Lords should be reassured to know that, where any sample is disclosed, it can only be done for the purposes I gave earlier.
There are other safeguards against the abuse of samples held subject to Clause 18. In line with his existing powers, the Information Commissioner will provide independent oversight of the database with regard to data protection issues. Additionally, the MPS will liaise with the newly appointed Forensic Science Regulator to establish standards for DNA analysis, validation of the CT DNA database and protocols for international exchange of DNA data. Working with the custodian of the national DNA database, the MPS will ensure compliance to standards it has set, which are accepted and adhered to by forensic laboratories. Additionally, it will work with the custodian to develop new protocols for cross-searching between the national and CT databases, ensuring that public confidence, counterterrorist investigations and national security are not compromised.
Finally, the report would have to include the circumstances in which information relating to fingerprints and samples was destroyed. As I have already stated, I accept absolutely that there is a need for a wider debate outside this one to discuss DNA and I have no doubt that this will be included in that debate.
We do not intend to destroy the samples covered in this Bill. The retention of DNA is not an indication of innocence or guilt; it is an important investigative tool which enables the matching of samples from crime scenes with those held on the database. At the same time, it allows for the elimination of people where samples do not match. For example, an estimated 200,000 profiles on the national DNA database would have been removed prior to a legislative change in 2001 to allow samples to be retained indefinitely. From these, about 8,500 individuals have been matched with DNA taken from crime scenes, involving some 14,000 offences. They include 114 murders, 55 attempted murders, 116 rapes and 68 other sexual offences, and a number of other serious crimes.
In conclusion, I believe that the report requested in Amendment No. 13 is unnecessary. We have set out clearly in primary legislation the situations in which fingerprints and samples can be taken and how they may be used, including safeguards. What is more, we have established a robust framework for the oversight of the retention and use of fingerprints and samples to ensure that the legislation is followed. For these reasons, I must resist the amendment and I hope that it can be withdrawn.
Can the noble Lord help me a little on this? If someone is detained for up to 28 days, presumably their fingerprints and a DNA sample will be taken. If they are released as completely innocent, will the fingerprints and sample be destroyed or will they be kept?
As I understand it, the material will be kept unless the person asks for it to be destroyed, at which point they would go through the process I described a few moments ago.
I am sorry; I have only addressed Amendment No. 13 so far. Amendment No. 14 seeks to require the Secretary of State to issue an order containing national guidelines on the fingerprint and sample database. With specific reference to the clauses of this Bill which we are debating, I will resist this amendment. Once again I remind noble Lords that it is not appropriate to have a wider debate on the use of fingerprints and samples in the narrower context of the provisions in this Bill, but I understand the depth of feeling about the need for such a debate, which I agree must take place at some stage.
The amendment requires guidelines on requesting information about the fingerprints and samples held. Access to information held on an individual is regulated by the Data Protection Act. Under that Act, an individual can ask the police what information they hold on them. Information on how to make a subject access request can usually be obtained from the local police station or through the force’s website. The Information Commissioner provides independent oversight of data protection issues, including the retention and use of fingerprints and samples. Given this established system, it seems unnecessary to require an additional set of national guidelines to be published.
Equally, there is a system for requesting the destruction of fingerprints and samples held. People can request the destruction of their sample in the case of those taken under PACE. The policy for samples taken under PACE, in line with the Criminal Justice and Police Act 2001 and the Criminal Justice Act 2003, and adopted by chief officers, is to retain, save in exceptional circumstances, all samples from people acquitted of criminal offences or against whom proceedings have not been pursued. The aim of the policy is the prevention or detection of crime, the investigation of offences, and the facilitation of prosecutions and speedy exculpation of the innocent, as well as the correction of miscarriages of justice. The House of Lords supported this policy in 2004 in the Marper case.
There is no legal obligation to remove samples taken under the Terrorism Act. As with Amendment No. 13, I do not think that there is any need for the Secretary of State to issue national guidance, as robust and established processes are already in place. I have outlined why we believe the policy upon which these processes are based is appropriate; namely, that the retention and use of samples taken either covertly from those who are not subsequently arrested or from those under arrest who are not subsequently charged, has played a vital role in many criminal investigations. I am in no doubt that when these clauses become law and the ability to cross-reference fingerprints and samples becomes more efficient, this will be of considerable benefit in the protection of our national security and the prevention, detection or investigation of crime.
In a future debate there may well be considerable scope to debate these principles, but this is not that debate. I have made clear the benefits of Clauses 10 to 18 and outlined the safeguards against the misuse of fingerprints and samples. I therefore ask that the amendments be withdrawn.
The noble Earl is quite right; that, in effect, is what we are saying: they will not be able to ask for them because they will never know. We are putting this on a statutory basis. For the moment, these data are held, but not in a proper database.
If the noble Lord and I found ourselves in chokey together, our fingerprints would be taken. If the police then found that they had made a terrible mistake and decided that we are upright and upstanding citizens of the highest rectitude, we would be released. We can then ask for our fingerprints and DNA samples to be destroyed. However, if the police think we might be up to something but do not arrest us and collect our fingerprints, we have no way of knowing that and no way of asking for them to be destroyed. They ought not to be able to keep fingerprints like that. The noble Lord says that it is part of the great debate, but it has been creeping on and on and ought to be dealt with as soon as possible.
I am worried that the more the Minister seeks to reassure us the less reassured I feel. He said that now is not the moment to debate this issue; that the Bill is not the right place to make a stand on it. I completely disagree. Clause 10 will allow a constable to take a person’s fingerprints without the appropriate consent if the person is subject to a control order. If you are subject to a control order, you have not even been through a process of law; you have not been through a criminal process. This widens out incredibly the ability of the police to take these samples and now is the point to make a stand.
If the Minister and the noble Lord, Lord Harris, want a national database to make it entirely fair, that would be a completely different argument. The Minister said that having these samples on a database has helped to solve many crimes, but that is a completely different argument. We are talking here about people who have not even been through a process of law.
We have three tiers of people at the moment: those who have been convicted and are on the database—and no one is arguing against that; those who have been picked up under the terrorism Acts and who are subject to a control order, or who have volunteered their DNA, who will stay on the database because no chief constable will remove them unless they write to him 20 times, and even then he probably will not; and those who are lucky enough not to be on a DNA database but among whom there may be many criminals. It is not a logical position and I am surprised that the Minister does not feel that this is the point to have the fight about it.
I was not arguing for a national database with everyone on it, although there is a debate to be had that that might be fairer and clearer for everyone. However, it is genuinely the case—I have detected this in the discussion that we have had in the Committee today—that there is a lack of clarity and understanding of what the current law says about different things. As I understand it, if you are arrested but not charged, your DNA can be taken and retained. As I understand it, that is the situation that exists. It is quite likely that I have got it wrong but I suspect that, with the exception of a handful of the noble Lords who are present today, none of us is clear about what all the different provisions and requirements on the DNA database are. Therefore, something which is set out in one place as an aide memoir for everyone—which would save having to plough through statutory law—would be extremely helpful.
I was not arguing that there should automatically be a database on which everyone was included, although there is a legitimate debate to be had on that on which you can come down on one side or the other.
I thank my noble friend for that interjection. There may be some merit in it which needs looking at. As regards the amendments to this part of the Bill, we have not yet got to the argument about people under control orders. The Bill does not add anything new. No new groups of people will have samples taken; nothing new is being added. This part of the Bill relates to information that is already taken and held by the security services, not the national database. It is intended to rationalise that information, hold it properly and deal with it in the same way.
That is why I do not believe this is the right time to open up the much broader debate—which we will need at some stage—because there is nothing new in the Bill. We will not be going out and taking any more samples than are being taken at the moment. Samples—the covert and other material—are already taken and already held on lots of files all blobbed up together. That is how the information is held and it is better to have that rationalised and able to be used. That is what this part of the Bill is about. It is not about anything new being taken and it does not relate directly to those under control orders, which we will come to with the next amendment.
I am sure that the noble Baroness, Lady Hanham, will be cheered to know that it sounds as though the Government and the noble Lord, Lord Harris, are agreeing with her Amendment No. 14. However, given the worries at the start of the debate about the definition of national security and what it encompasses, will the Minister write with a definition of what falls under national security before Report?
I am grateful to everyone who has taken part in the debate. It is interesting that we say we should have a debate on this issue on some occasion when it is very seldom—or, perhaps, more often than not—that we have a debate within legislation which would enable us to change a situation. We can sit in the Chamber and discuss DNA for three or four hours on a day when we have a debate on the subject, but nothing will result from it because it is not legislation and it is not amending legislation. So the opportunity presented by the proposed new clauses has been helpful because it has underscored the fact that most noble Lords who have spoken have considerable concerns about who is on a DNA/fingerprint database and how you get off it.
I am more worried by the Minister’s replies than I was at the outset of the amendments. Both the Minister and the noble Lord, Lord Harris, who intervened, have a general assumption that this collection of DNA—whether it is from those who are criminally involved or have had a case proved against them, or from those who are totally innocent but have come across a situation where there is a need for a DNA sample to be taken and filed—is completely inchoate. It is impossible for people to know or challenge what is there. It is all very well to say that a chief constable can be asked to provide information, but that will take a big effort—it is probably worse than trying to chase down your bank card and finding out whether or not there is a black list.
We cannot be light hearted about the collection and holding of information on people. There are perfectly reasonable grounds for taking samples and keeping them for a certain length of time while inquiries take place and, indeed, when they are to be used in evidence, but the whole question of more and more people finding themselves on a database—which, as the noble Lord, Lord Harris, said, can be scrutinised and interrogated to see whether they may or may not have been involved in a criminal offence—is extremely alarming.
I hear what the Minister has said and what other noble Lords have said. I am not prepared to not return to this; we will almost certainly return to it on Report. As I said, it has raised almost more anxiety in me than I had when I tabled the amendments. The fact that these provisions are splattered throughout legislation is one of the reasons why there should be a pulling-together of where all that information is. It is not a matter that only the security forces and the police should know where the information is; people should not have to scurry around trying to find out what legislation refers to which bit of something that belongs to them. My DNA is mine—it is me; it is what characterises me; it is what makes me. My fingerprints are unique, as far as I know, and my DNA is unique to within 14 million to one, or something similar, and so it is immediately identifiable. We cannot have the security services saying that they want to hold on to this information because it is so obvious to whom the DNA and fingerprints belong. We have to strike a balance between security and liberty. I believe that we are far outside the area of liberty. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 14 not moved.]
Clause 10 [Power to take fingerprints and samples: England and Wales]:
15: Clause 10, page 7, line 5, after “constable” insert “, with the authority of an officer of a rank no lower than inspector,”
The noble Baroness said: This group of amendments is intended to be probing. Clause 11 deals with the power to take fingerprints and samples in Scotland, and is explicit in requiring a constable to get the authority of an officer of a rank no lower than inspector—here we are again—whereas that is not the case for England and Wales. Clause 10 simply requires a constable’s authority to take fingerprints and samples. I am simply trying to understand a little better why the Government are not seeking the additional safeguards for England and Wales that are provided in Scotland. I beg to move.
The provisions in Clauses 10, 11 and 12 intend to regularise police powers across the UK to take routinely, use, store and retain fingerprints and non-intimate samples of individuals subject to control orders.
To demand authorisation from an inspector or above in England, Wales and Northern Ireland would create an unnecessary difference between the current framework under PACE and that for control orders. The public consultation exercise on the review of PACE has clearly shown that the current framework works effectively. To introduce a further tier to that framework would cause confusion and place unnecessary demands on operational resources. Consequently, we do not believe that there should be an exceptional level of authorisation for the collection or use of fingerprints and non-intimate samples for individuals subject to control orders.
In the other place, the Minister of State for Security, Counter-Terrorism, Crime and Policing accepted there was a wider debate to be had about PACE, although he disagreed with the argument that the levels of authorisation should be raised as a result of that debate. But he emphasised that it is not appropriate to debate the wider issue of the levels of authorisation contained in PACE and PACE Northern Ireland in this specific, narrow context.
In Scotland, as I have said, under the 1995 Act the taking of some but not all samples requires the authorisation of an inspector or above. So, again to avoid the confusion that would be caused by having two different regimes for the taking of fingerprints in Scotland, Clause 11 mirrors those standard requirements for the taking of fingerprints or samples of individuals subject to a control order in Scotland.
On a more technical level, it is worth noting that if the intention of these amendments was to mirror Scotland, they are, on that basis, flawed too. First, authorisation from an inspector is required in Scotland in relation to only some, but not all, samples. Fingerprints are one of the samples that do not require inspector-level authorisation in Scotland. These amendments propose inspector-level authorisation for taking all fingerprints in England, Wales and Northern Ireland. Secondly, authorisation from an inspector is not needed in Scotland for a constable to require an individual to attend a police station to have samples taken; these amendments propose that there should be such authorisation in England, Wales and Northern Ireland.
In two respects, therefore, the amendments go beyond the position in Scotland. There is also a third technical point to note: the amendments are inconsistent in their impact on the operation of the powers in England, Wales and Northern Ireland. The amendments raise the level of authorisation required for the taking of fingerprints, but not for the taking of non-intimate samples. Thus, while the intention may have been to mirror the position in Scotland, it is only a slight simplification to say that in practice these amendments would mean that the position in England, Wales and Northern Ireland would be opposite to the position in Scotland.
I hope that explains the reasoning. In conclusion, for both principled and practical reasons, I disagree with the amendment.
I am grateful to the Minister for clarifying that position. If the clause was intended to regularise issues, perhaps we should all have been in the same boat and not had a different provision for Scotland. However, I understand the differences that he has explained for me. I will not pursue this any further, and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 16 not moved.]
17: Clause 10, page 7, line 22, leave out subsection (4)
The noble Baroness said: I shall speak also to Amendment No. 20. Clauses 10 and 12 deal with the power to take fingerprints and samples. I have great difficulties with Clause 10(4) and Clause 12(5), which deal with the retention of those samples, particularly their retention for purposes other than that for which they were originally taken. This is an area that these Benches have always challenged and I make no apologies for doing so yet again.
Two principles are in play in English law at the moment. Fingerprints are not retained after the event in the case of people who are not accused of any offence, but DNA samples are. Many people, as we have heard, have been critical of the fact that, irrespective of whether they have been released without charge or acquitted in a court, a group of people have had samples taken that are retained in a database. The rest of us who have never been arrested, charged or put before a court are not subject to that requirement—we do not have to give samples. The database, therefore, is made up of a skewed sample. It is illogical to have a database of those who have been found guilty of a crime and those who have expressly not been found guilty of a crime but who have their samples retained.
The issue is compounded when we are dealing with control orders, which we will move on to. Control orders are exceptional as a class of punishment. They are a punishment without findings of guilt—effectively, punishment on suspicion. They are a way of ensuring that people are not a danger as a pre-emptive measure, rather than post-charge and post-finding of guilt. Therefore, to retain fingerprints and samples from such a person, against whom no charges have been made or put and against whom no case has been proven, seems to be, at the very least, dubious. To do so after these samples have fulfilled the purposes for which they were taken is dubious in the extreme. We need to take great care to examine whether this measure is proportionate and appropriate and to examine the value that it will have. I beg to move.
This amendment was debated extensively in the other place and the Government’s position has not changed. The purpose of Clause 10 is to put the power to routinely take fingerprints and non-intimate samples of controlled individuals in England and Wales on an equivalent basis to the existing police powers in relation to fingerprints and non-intimate samples taken after arrest. Clauses 11 and 12 do the same for Scotland and Northern Ireland respectively.
The current procedures in England, Wales and Northern Ireland normally allow the retention of fingerprints and non-intimate samples after they have fulfilled the purposes for which they were taken. This will be under the provisions of PACE or PACE Northern Ireland, or the equivalent provisions in Schedule 8 to the Terrorism Act 2000, which also apply in Scotland.
We do not believe that fingerprints or non-intimate samples taken from controlled individuals should be subject to different rules in relation to their retention. First, we consider it appropriate that fingerprints and samples of controlled individuals should be retained on the same basis as samples taken from other individuals under PACE, PACE Northern Ireland or the Terrorism Act 2000, since controlled individuals are by definition suspected terrorists. It is worth reminding noble Lords that, under those provisions, fingerprints and samples of individuals are kept even if the individual is not charged.
Secondly, and related to that, the same safeguards and provisions apply as for other fingerprints or samples taken under PACE, PACE Northern Ireland or the Terrorism Act 2000. For example, the samples may be used only for certain defined purposes.
Thirdly, on a practical level, the retention of these fingerprints and samples may help the police and agencies with future criminal and terrorism investigations. By retaining controlled individuals’ fingerprints and non-intimate samples, we strengthen the ability of the police to prevent, detect and investigate such crime and terrorism and we increase the chances of the individuals responsible being prosecuted.
I hope that noble Lords support this, given the preference of everyone, particularly the Government, that we prosecute suspected terrorists rather than use a control order on them. Noble Lords will be well aware that there have been many successful prosecutions of serious criminal offences as a result of retaining samples that would previously have been destroyed.
Lastly, we do not in any case think it appropriate to debate the wider issue of retention of fingerprints and samples contained in PACE, PACE Northern Ireland or the Terrorism Act 2000 generally in this specific narrow context. That does not mean that there is not a case for a wider debate, as we discussed earlier.
The noble Lord has now said several times that there is a need for a proper debate on this. Those of us who take a very dim view of the Government’s creeping practice would like to know when this debate is going to take place and if, as a result, there will be a proper received view of what should be done. Is there any likelihood of the Government doing anything about it or is the Minister just using the need for a debate as a defence for the present clauses in the Bill? As the noble Baroness just said, it is difficult to pin the Government down. This is a serious and growing problem, which is a danger to our liberties.
I am grateful for the support from the Conservative Benches. I thank the Minister for his response, which has been of a general nature. Perhaps much more debate is needed around the area of taking fingerprints and samples that are kept even if a person is not charged. The Minister said that the retention may help in future. I am sure that that is so, but a great many individuals would be caught in this net rather than the specific people for whom I think this legislation, which is to counter terrorism, is designed. The Bill is aimed not at people who are committing general or even serious crime but specifically at counterterrorism. I am grateful but again disappointed to hear the Minister’s response. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 10 shall stand part of the Bill?
Clause 10 deals with the taking of fingerprints and non-intimate samples from those subject to control orders. As my noble friend Lady Miller of Chilthorne Domer said on Amendment No. 14, these are people who have not been through a process of law.
The need to legislate specifically to allow fingerprints and DNA to be taken from those on control orders underlines fundamental problems of process. One consequence of creating a quasi-judicial system outside criminal law is that the normal procedural and ancillary policing powers associated with the criminal process do not apply. Anyone arrested for recordable offences, which include offences as trivial as begging, can currently have their DNA taken and permanently retained, even if they are not convicted or even charged. The result is a policy anomaly where allegations of involvement in terrorism—criminality of the highest order, as has been pointed out—through the control order system mean that the police are unable to use powers that are available as a matter of course when investigating suspicion of much lower-level criminality.
We do not have any concerns about the police having the power to take the DNA of those properly arrested on suspicion of committing terrorist offences; that power already exists. However, we are concerned about the proposal to allow DNA samples to be taken from those subject to civil law rather than criminal law proceedings. We hope that the Minister will seriously consider the suggestions that we have made in our previous two sets of amendments, which would go some way towards allaying our concerns. I recognise that the Minister has spoken at great length on this area. This is the last chance, at this stage, to deal with it.
Currently PACE makes no specific provision for individuals subject to control orders, so such persons are not subject to the same powers and safeguards for the collection and use of fingerprints and non-intimate samples as those who are arrested in connection with a criminal offence. This clause will provide the same powers to the police as well as, importantly, the same level of safeguards to those subject to control orders.
The PACE framework of powers and safeguards is both well established and highly regarded. As such, it provides the most appropriate and obvious structure in which to include provision for the taking of fingerprints and non-intimate samples from controlled individuals.
Control orders are an important tool—just one of many—in our fight against terrorism. Since their introduction in the Prevention of Terrorism Act 2005, they have helped to manage the risk posed to the public by the small number of suspected terrorists whom we can neither prosecute nor deport. Without some disruption of their terrorism-related activity, I have no doubt that these individuals would be free to continue to facilitate or execute acts of terrorism. That is a risk that the Government are not prepared to take.
We are committed to introducing measures that increase our effectiveness in disrupting, preventing and restricting terrorism-related activity, including in relation to control orders, and assist in more general criminal investigations and prevention purposes. Clause 10 will help to deliver this. This clause applies in England and Wales only; similar powers for Scotland and Northern Ireland are in Clauses 11 and 12.
Fingerprints and non-intimate samples can already be taken from individuals subject to control orders if it is necessary and proportionate to do so by including an obligation to this effect in the control order. However, this will be for very limited purposes connected with monitoring compliance of the order. The purpose of the clause is to provide equivalent powers and safeguards in relation to individuals subject to control orders as currently apply when arrests are made under PACE.
By definition, individuals subject to control orders are suspected terrorists. Such individuals should be subject to equivalent powers and safeguards for the routine taking, use, storage and retention of fingerprints and samples as currently apply when arrests are made under PACE. This clause delivers that. It provides the police with a routine power to take fingerprints and samples from controlled individuals, allowing the police to store and retain them and to use them for the wider purposes set out in PACE as amended by other provisions in the Counter-Terrorism Bill. The wider purposes are: serving the interests of national security; the prevention or detection of crime; the investigation of an offence; the conduct of a prosecution; or the identification of a deceased person, as I said previously.
Crucially, the clause also ensures that the same safeguards apply; for example, the samples may be used only for certain defined purposes and a constable is required to inform the individual concerned of the reason for taking the fingerprints or sample without consent before they can be taken. Moreover, the measures set out in the clause will also help in the investigation of criminal activity. By taking and retaining criminals’ fingerprints and samples, we strengthen the ability of the police to prevent, detect and investigate crime and increase the chances of such individuals being prosecuted. As a result, these powers may help to get suspected terrorists off control orders and into the Government’s preferred route of prosecution, which I know this Chamber supports. Noble Lords will be well aware that, in general terms, there have been many successful prosecutions of serious criminal offences—I have mentioned the numbers—as a result of retaining samples that in the past would have been destroyed.
This is a minor, proportionate amendment to existing PACE powers that will better enable the Government to manage the risk posed to the public by suspected terrorists—we are talking about 16 at the moment. Without these powers, the police would not be able routinely to take, use, store or retain fingerprints and samples of individuals who are suspected of facilitating or executing acts of terrorism and are on a control order but whom we have not been able to arrest or charge. Putting the new powers on an equivalent basis and in the same legislation as existing police powers in relation to fingerprints and samples ensures that the same procedures and safeguards apply.
I again thank the Minister for his considered response, which is exactly what I expected. As we have gone through Clause 10, it has felt as though we have been flogging a dead horse. Nevertheless, I have great concerns, which have been echoed across the Committee. The Minister referred to the powers as being “minor” and “proportionate”; they are anything but, and we may come back to them on Report.
Perhaps the Minister will clarify something. I apologise for not having taken part in this debate previously, but I have followed the anxieties about the clause that have been expressed in newspapers. I cannot quite see what all the fuss is about. As I understand it, if a person is thought to have committed an offence, he can have his DNA and other samples taken. The argument is whether the police should be allowed to keep it. The Government interfere horribly and far too much with all our private lives and this is a very sensitive issue. However, if the police keep a person’s DNA, what does that matter unless they subsequently commit a crime? If they commit a crime, whether it is a terrorist crime or whatever, the DNA is available to help to find them. If they have not committed a crime, they have nothing to worry about. The idea of the police hanging on to those samples sounds terribly intrusive, but, unless a person commits a crime, the samples will not be of any use.
I am delighted that the noble Earl has made that point. When we have our wider debate about DNA, it will be absolutely valid. I am sure that the parents and loved ones of the many people who have been murdered and raped, with the perpetrators found only because of DNA, would argue exactly the same. However, I am equally aware of all the other arguments to do with civil liberties. We need a much broader debate, because there are many different perspectives. I accept exactly what the noble Earl has said, but there are other sides to the argument and we need that broader debate. However, I could not agree more with some of what he said.
Clause 10 agreed to.
Clause 11 agreed to.
Clause 12 [Power to take fingerprints and samples: Northern Ireland]:
[Amendments Nos. 18 to 20 not moved.]
Clause 12 agreed to.
Clauses 13 to 17 agreed to.
Clause 18 [Material not subject to existing statutory restrictions]:
21: Clause 18, page 14, line 5, leave out “(whether”
The noble Baroness said: This subsection allows a law enforcement authority to use information not held subject to existing statutory restrictions in the prevention or the detection of a crime. It applies even if the act is not an offence under UK jurisdiction, if it is a criminal offence in another country. That would seem to allow for some odd investigations, for example, in the case of adultery or alcohol consumption, which are illegal in certain Middle Eastern states. Will the Minister help me by giving some examples of situations where information not held subject to existing statutory restrictions might be used in the investigation of an act that is a crime in another country, but not in the United Kingdom?
Why does this subsection not refer to criminal offences which correspond to a crime under the law of part of the UK, as the Bill does elsewhere? It deals with information that has been obtained and held by unusual means. It may often be sensitive information. We have tabled the amendment to ensure that the information can only be used in a responsible way which corresponds to laws passed in the UK. At this stage it is a probing amendment, but how probing it is depends rather on the Minister’s reply. I beg to move.
This is another section of the Bill that causes a certain queasiness. It is only right that the amendment should have been moved. I very much support the fact that it has been. There is a recent case of somebody having been arrested under an EU warrant for a crime which is not a crime in this country.
We are talking under this Bill, as far as I understand it, about counterterrorism. However, the wording of these clauses would throw this far wider than anything to do with counterterrorism. This would be a criminal offence far beyond counterterrorism. If we are not careful we jeopardise the safety of our own residents and our own people if we are going to help in the prosecution of a crime committed or potentially committed elsewhere that is not a crime in this country. It depends on the level, but it is a slippery slope. I support the inquiry within the amendment and look forward to the Minister’s reply.
The provisions on the retention and use of fingerprints and samples have three objectives: first, putting a counterterrorism DNA database on a firmer legal footing; secondly, allowing such samples taken under the Police and Criminal Evidence Act and the Police and Criminal Evidence (Northern Ireland) Order to be used for national security; and, thirdly, making it easier to allow fingerprints or samples taken under the Terrorism Act to be placed on the National DNA Database.
Clause 18 puts DNA and fingerprint material that is not currently subject to statutory restrictions on a statutory footing permitting law enforcement use for certain purposes. This material includes samples obtained covertly under Part III of the Police Act 1997 and Part II of the Regulation of Investigatory Powers Act 2000. For example, under the Police Act, a warrant may give the police the power to enter someone's home and take away some property in order to obtain a sample. RIPA authorises both covert surveillance and the use of covert human intelligence sources. Unlike the Police Act it does not allow the interference with property.
However, during surveillance, a DNA sample may be lawfully obtained from property without the type of warrant in the Police Act. A good example of this might be where a person under surveillance discards a cigarette or a drinks container. The discarded cigarette or drinks container can be collected covertly and a sample taken. Or, should a covert human intelligence source be used, the person under surveillance could visit the source’s house and the sample could be taken from a tea-cup. It also includes material supplied by another law enforcement authority which, by virtue of Clause 18(5), includes both domestic and foreign law enforcement authorities—for example, the French police.
Finally, the provision applies to samples otherwise lawfully obtained in the interests of national security for the prevention/detection of crime, the investigation of an offence, the conduct of a prosecution or for purposes related to the identification of a deceased. Such latter material might include material obtained during a criminal investigation other than through the exercise of covert powers—for example, during a search, from a crime scene or lawfully provided by a body other than another law enforcement authority, perhaps from the intelligence services of another state.
DNA and fingerprint material obtained in this way will form the material that is stored by the Met on the CT DNA database. The principal purpose of Clause 18 is therefore to provide a firm legal base for this database.
These amendments to Clause 18 seek clarification on the samples against which DNA and fingerprint samples obtained through legal covert surveillance can be checked. The amendments seek to prevent DNA samples and/or prints lawfully held by a law enforcement authority being used for the purpose of preventing or detecting a criminal offence under the law of a country outside the UK.
The terrorist threat requires both national and transnational, multi-agency co-operation. It is important that we are able to share our data with national and international partners so that we can properly protect our national security.
Clause 18(4), to which these amendments apply, defines “crime” as,
“a criminal offence … under the law of … the United Kingdom or of a country or territory outside the United Kingdom”.
The effect is that covertly acquired samples can be checked against other samples for, among other things, the purposes of a criminal investigation in the United Kingdom. Additionally, our covertly obtained samples can be checked against other samples, including those held by a foreign Government or agency, for the purposes of, among other things, a criminal investigation in a foreign country—terrorist training, for example.
We are resisting these amendments because there is a real need to share this data internationally, especially where terrorism is concerned, and there are appropriate safeguards in place. For example, we may have obtained samples during a covert operation of a group of individuals we believe to be involved in terrorism. Some time later, a sample may be found overseas by a partner agency that arrests an individual at a terrorist training camp. Clause 18, unamended, allows us to check the samples we hold, which are not subject to statutory provisions, with samples held overseas. The clear benefit of such comparisons is that we can build up a much better picture of the dynamics within complex terrorist networks which span the globe. This is currently crucial to counter the threat that we face. Being able to build up this clear picture is of great and tangible benefit to our national security.
There are safeguards against the abuse of samples held subject to Clause 18. In line with his existing powers, the Information Commissioner will provide independent oversight of the database with regard to data protection issues. Additionally, the Metropolitan Police Service will liaise with the newly appointed forensic science regulator to establish standards for DNA analysis, validation of the CT DNA database and protocols for international exchange of DNA data. Working with the custodian of the national DNA database, the MPS will ensure compliance to standards it has set, which are accepted and adhered to by forensic laboratories. Additionally, it will work with the custodian to develop new protocols for cross-searching between the national and CT databases, ensuring that public confidence, counterterrorist investigations and national security are not compromised.
Noble Lords will be reassured to know that this definition of crime is already included in paragraph 20(4)(a) of Schedule 4 to the Terrorism Act 2000. I hope that I have been able to reassure the noble Baroness and that she is able to withdraw her amendment.
The Minister’s detailed reply was a lot more reasonable, and sounded much better, than what is actually in the Bill. He consistently referred to terrorism and associated acts that might lead to terrorism, such as training camps. In fact, however, the subsection I seek to amend just refers to a “criminal offence”, which is of course much wider. My question in moving the amendment was why the subsection does not refer, as the Bill does elsewhere, to criminal offences which at least correspond to crime under UK law. Even if he cannot do so now, can the Minister give me some examples of situations where information might be held involving an individual committing a crime in a country where it was a crime—the consumption of alcohol, for example, which is certainly not a crime here?
However, the bigger issue is that the Bill refers to criminal offences and the Minister’s reply was to do with crimes of terrorism. If the subsection said that, we would have far fewer worries about it. There would then be an international understanding of what sort of crime we were talking about. The subsection is drafted very widely; perhaps we could have a discussion about that between now and Report to see if there is room for movement. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 22 not moved.]
Clause 18 agreed to.
Clause 19 [Disclosure and the intelligence services]:
23: Clause 19, page 15, line 4, at beginning insert “At the request of the intelligence services for specific information,”
The noble Baroness said: Clause 19 permits people to disclose information to the intelligence services to further the exercise of their functions. This probing amendment seeks to discover whether the Minister envisages that the intelligence services will request specific information in response to a particular threat, or whether they will request the systematic release of general information.
The clause seems to allow the routine release of information en masse on the understanding that it might be relevant to the functioning of the intelligence services. This information dumping is unreasonable. Therefore, the amendment suggests that targeted information only should be released, not broad swathes of data which the intelligence services may process just in case they might be relevant. I beg to move.
This picks up the Chinese wall aspect that we discussed about whether information collected during a search, which may bear no relation to the offence being investigated, can be passed to other people. I suggest that the thrust of the amendment is to discover the extent of the responsibility of, for example, police forces to pass information to the intelligence services that they think may be relevant to the latter but which is not relevant to the police inquiry that is taking place. They may have acquired material that they should not have because it does not relate to the offence they are investigating, but can they then pass that to the intelligence services if they consider that it is relevant to the latter? I am not arguing about whether this is right or wrong, but we need to know whether they can do that.
I think I understand where the noble Baroness is coming from. However, I do not think that the amendment would achieve her objective. It seeks to insert:
“At the request of the intelligence services for specific information”.
We believe that would remove the certainty of those individuals who think they know something that they should tell the intelligence services, to enable the latter to do their job, that they can do so in the knowledge that they are acting lawfully. While they could still do so, relying on common-law principles, it is illogical to create a disparity between those being asked by one of the services and those wishing to volunteer, without being asked, information to one of the services. I believe this amendment would create such a disparity. This could lead to the interesting game of someone telephoning the MI5 information number and saying, “I have some information that I want to tell you but I'd be most grateful if you could keep asking me for different specific pieces of information and I'll let you know when you've asked the right question”. The intelligence services would not know what to ask for.
There is no good reason to differentiate between those who have been asked by the intelligence services for information and those who wish to volunteer it. In each case the information can be equally important to preventing an outrage or bringing a terrorist to justice. We should be encouraging and facilitating our citizens, and others, to co-operate with and help the intelligence services to do their work by providing information. For that reason I ask the Committee to resist this amendment. As I say, I do not believe that it would achieve the objective which the noble Baroness seeks.
I nearly intervened several times while listening to the discussion, particularly when I heard the police being accused of going on endless fishing expeditions. That is simply not true. The Minister referred to the difficulty that the amendment might suggest that people cannot volunteer information. People communicate extensively with the Security Service through either its public telephone number or its website. Much of the information that they provide is of little use, but it may contain vital nuggets, which is sometimes passed directly on to the police but is useful in a number of ways.
The noble Baroness’s suggestion that the Security Service either wants or receives dumped information that is not relevant to its functions is wrong and misunderstands the very close relationship between the Security Service and the police in all counterterrorist investigations. There is a daily, hourly, minute-by-minute exchange of information between the two, which is facilitated by police officers sitting in the Security Service operation rooms and by Security Service officers in Scotland Yard, or in the local police force if something is happening outside London. There is a great transmission of information throughout an operation. Actually, the last thing that this House would be arguing for is a Chinese wall between the security and intelligence services and the police, who need to work as co-operatively as possible to achieve the results of countering terrorism.
I understand that this was meant to be a probing amendment, but I reassure the noble Baroness that there is certainly no intention or wish to collect a whole lot of information that is not relevant to the Security Service’s functions, and it would be wrong to do so.
I am very grateful to the Minister for his reply and to the noble Baroness, Lady Manningham-Buller, for her expert intervention. The House is fortunate to have her depth of knowledge. She referred specifically to anti-terrorism work, but the clause is drafted more widely than that, because it refers to,
“for the purpose of any criminal proceedings”.
I hear what the noble Baroness says, and I shall read it very carefully. I shall also read the Minister’s detailed reply. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
24: Clause 19, page 15, line 25, leave out paragraphs (a) and (b) and insert “any contractual or other obligation owed by the person making the disclosure, other than a breach of confidence.”
The noble Baroness said: The amendment would retain confidence breach as a potential consequence of passing information on to the intelligence services.
Clauses 19 to 21 allow for any person to speak to the security services in connection with any of their functions, without breach of a contractual duty or breach of common law duties of confidence. We imagine that those provisions have arisen in response to concerns in specific cases about the willingness of individuals to pass on information. We do not have any comment to make about the provisions with regard to, for example, breach of contractual obligations. We agree that the passing on of potentially valuable intelligence should not be jeopardised as a consequence of concern over potential civil action.
We are more concerned about breaches of obligations of confidence. The special nature of the relationship is, for example, recognised in Section 19 of the Terrorism Act 2000, which created an offence of failing to disclose a suspicion about terrorism arising from a person’s employment. Section 19(5) has a specific exemption; it does not apply to information received from a professional legal adviser. There are other relationships of confidence that we believe warrant special consideration, including medical professionals and religious advisers. Rather than creating a blanket exemption from the possibility of a civil action for breach of any duty of confidence, we believe that Section 19 should recognise the importance of some such relationships of confidence.
It is important to appreciate that these amendments do not mean that any disclosure to the security services will result in a breach of confidence. It simply removes the absolute nature of the provision that there can be no breach of confidence when information is passed to the security services. There is already a defence of acting in the public interest to actions of breach of confidence. In deciding whether the defence applies to a particular claim, a court must balance on the facts the need to enforce obligations of confidence against the public interest in disclosure of the information of the type at issue. Any disclosure in the public interest must have been proportionate for the defence to succeed. I beg to move.
I understand what the noble Baroness is trying to achieve, but I oppose the amendment. The intelligence services fulfil a vital role in keeping safe the citizens of, and visitors to, this country. Information is the key commodity in achieving this. Of course, some of that information comes from secret sources, but we must not overlook the contribution from ordinary men and women in providing the intelligence services with information, as the noble Baroness, Lady Manningham-Buller, said, that they think they should have access to so that the intelligence services can do their job in helping to protect us.
Under common law, a person can, in the public interest, disclose information while under an obligation of confidence or other restriction; that is, they can make a disclosure where this serves a higher public interest than the obligation of confidence. Clause 19(6) makes it clear that this is the case when someone wants to give information to the intelligence services to enable them to do their work.
This amendment would override the principle currently recognised in common law that the greater public interest may lie with protecting national security. It would prevent a person making a disclosure where it would breach an obligation of confidence and suggest that in all circumstances a duty of confidence represented a higher public interest than national security. This proposition is not recognised in common law, nor is it one with which I can agree.
The current clauses provide certainty and clarity to everyone who thinks that they have information that they should share with intelligence services so that they can do so in the certain knowledge that they are acting lawfully. The clauses put the agencies on a similar footing for national security, terrorism and the prevention and detection of serious crime. The Serious and Organised Crime Agency is already on that footing for the prevention and detection of crime. It must be noted that the amendment would not only perpetuate the anomaly between SOCA and the intelligence services, but it would make it worse. With the amendment, a person could give information to SOCA in order to prevent crime, but not to the intelligence services to prevent serious crime or even a terrorist attack, if in doing so they breached an obligation of confidentiality. This cannot be right. I am sure that that was not intended by the amendment.
It must be borne in mind that there is no obligation on anyone to give information to the intelligence services. We are discussing here a situation where a person thinks he or she has information that should be given to the services. It must also be borne in mind that neither service, under their governing legislation, the Security Service Act 1989 or the Intelligence Services Act 1994, can obtain or accept information, except as far as is necessary for the proper discharge of its functions.
That is why this amendment is not just unnecessary but unhelpful and should be resisted, although I understand what the noble Baroness was trying to achieve.
I am grateful to the noble Lord for his care in how he dealt with the amendment and for what he has put on record. That will go a long way in countering some of the concerns expressed. To have responses on record is a valuable way of ensuring that people understand the issues that we are dealing with. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
25: Clause 19, page 15, line 30, at end insert—
“( ) Nothing in this section shall require a person to disclose information to any of the intelligence services for any purpose.”
The noble Baroness said: This is simply a probing amendment to allow the Minister to reassure us that disclosure is entirely permissive and that there is no possibility that the clause may be used in a more aggressive manner to seek information which results in the person from whom the information is being sought feeling that it is not being extracted in a permissive manner. I beg to move.
This amendment is unnecessary. There is nothing in this clause or elsewhere which could be taken to mean that an individual could be required to disclose any information to the intelligence services. Laws that have no effect are generally held to be bad law, and the amendment, therefore, is totally unnecessary. To include it would cause confusion.
The purpose of Clauses 19, 20, and 21 is simply to make it clear that appropriate information—that is, information to enable the intelligence services to undertake their statutory functions—may be voluntarily passed to an intelligence service and, when this is done in accordance with these clauses, disapplies any obligation of confidence or restriction on the disclosure of that information. It is a clarifying and enabling set of clauses relating to the voluntary giving of information, and it in no way purports to place an obligation on any person to provide information. I must therefore resist the amendment.
26: Clause 19, page 15, line 30, at end insert—
“( ) Under this section, only information concerning persons under investigation may be disclosed by the security services for the purposes listed in subsections (3) to (5).”
The noble Baroness said: This is the last in this series of probing amendments to explore the extent of these provisions. This amendment deals with the fact that, as written, subsections (3) to (5) of Clause 19 allow the security services to disclose any information for the purpose of exercising their functions. This seems to mean that they can disclose information about innocent people without restriction so long as this serves a purpose.
I think that the intention behind the clause is to allow information relating to a criminal or suspect to be released by the security services as part of wider investigations, which we believe to be a proportionate use of personal data. On the other hand, it would not be acceptable for the security services to disclose information which might be of a personal or sensitive nature relating to innocent individuals who are not under investigation, even as part of the exercise of their correct functions. The intention behind the amendment is to discover from the Minister to what extent the release of information about innocent individuals is restricted. I beg to move.
The amendment states that,
“only information concerning persons under investigation may be disclosed by the security services for the purposes listed”.
I think there is a technical defect in the amendment in that it introduces the undefined term “security services”. I assume that it was intended to say “intelligence services”, although I am not sure.
Perhaps I may give the noble Baroness a short example which might put across what I think she was trying to achieve within this probing amendment and which will show why the amendment is flawed. Let us say that the intelligence services receive creditable intelligence of a threat against a Member of this House and, for the purposes of this example, let us assume that the Member is not under investigation, which I hope is a fair assumption. I imagine that I need not join any more of the dots. The truth of the matter is that the work of the intelligence services is not limited to the investigation of individuals. A great deal of their vital work is the protection of individuals, critical national infrastructure and society, both in part and as a whole at home and abroad. I know that this House in general commends and salutes the work of the services but, as I said, it is not just a matter of investigating individuals. I hope that that example will clarify that and, for those reasons, I ask the noble Baroness to withdraw her amendment.
I am very grateful to the Minister for that explanation and for pointing out that our drafting was wrong. He is quite correct: it should have read “intelligence services”. In concluding this group of amendments, I should like to concur with his remarks from these Benches. We recognise the enormous contribution that the intelligence services make to the counterterrorism effort and in no way would we want our amendments to be taken as diminishing the significance of their work. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 19 agreed to.
27: After Clause 19, insert the following new Clause—
“Disclosure and the intelligence services: safeguards
Information disclosed by virtue of sections 19(3)(c), 19(4)(d) or 19(5)(b) which has been obtained from authorities or persons outside of England and Wales, must be accompanied by a statement—
(a) for section 19(3)(c), from the Director of the Security Service,(b) for section 19(4)(d), from the Chief of the Intelligence Service,(c) for section 19(5)(b), from the Director of GCHQ,setting out the steps taken to ascertain the circumstances in which such information was obtained and that it had not been obtained by torture.”
The noble Lord said: I am a member of the Joint Committee on Human Rights, and the amendment and one or two others that we will be discussing on Monday and later stem, in part at least, from the work of that Select Committee.
There is a small error in the amendment. It refers to England and Wales but should refer to the United Kingdom, in case anyone draws conclusions about Scotland and Northern Ireland.
The Minister arranged for some of his officials to be here this morning so that we could discuss aspects of the Bill with them. I was happy to do that. Through the Minister, I would like to express my thanks to his officials for being very patient in dealing with the various points I raised.
Essentially, the amendment concerns torture. Torture is absolutely unacceptable. Of course, evidence obtained through torture is, or certainly ought to be, completely unacceptable. I appreciate that, when evidence comes in from abroad, it is not always possible for the powers that be to know for certain whether it has been obtained in the way in which it would be if it were obtained internally in this country, but it is right for us to say that certain safeguards ought to be required. Clearly, in this country we would not use evidence that had knowingly been obtained through torture. I think that is clear and there is no doubt about that. The question is: how much trouble do we go to to ensure that that is the case? It is possible for evidence to come in and for the authorities to say, “Well, it doesn’t look as though it came from torture, so let’s just make use of it”.
The point of the amendment is to put greater responsibility on the three services or individuals mentioned—the Security Service, the intelligence service and GCHQ—so that the directors and chiefs of those organisations will have ensured, as much as possible, that none of the information had been obtained through torture. I would contend that this is almost certainly what they do anyway. Therefore, we are simply asking that this be made clearly and transparently known in a statement rather than simply understood to be the case. If it is not the case, of course, we are in a somewhat worse situation.
In the amendment we are seeking a safeguard that everything possible is done to ensure that information has not been obtained through torture and that quite a lot of trouble is taken to ensure that that is not the case. Nothing can be 100 per cent clear, but I contend that we can go further down that path than is the case at the moment. I beg to move.
My name is to this amendment. I agree completely with what the noble Lord, Lord Dubs, has said. Furthermore, I would like to underline the fact that amendments in my name and those of the noble Lords, Lord Dubs and Lord Lester of Herne Hill, and the noble Baroness, Lady Stern, come from deliberations in the Joint Select Committee on Human Rights whose views on this Bill are like the shield wall of Thermopylae. You could not get a chink between any of us on these matters. On other points, there have been differences of opinion, such as on how we would approach the issue of the Bill of rights, where people expressed different nuances. But on this you cannot get a single chink between any of our views, either in the Commons or in the Lords. It is very important to make that point.
I would really like to hear from the noble Baroness, Lady Manningham-Buller, and from my noble friend Lady Neville-Jones. Could we possibly call them the Bond girls in this arrangement?
No, the noble Baroness says, over there. Could we hear from them exactly what the attitude of the intelligence services is? That would underline what the noble Lord, Lord Dubs, said. I think I am right in saying that, if it can be shown that evidence has been obtained through torture, it is inadmissible in court. To ensure it does not happen is another extremely important reason for hearing more on this.
I shall answer the noble Baroness, Lady Hanham, first. I am not aware of that work. Torture is discussed quite often. We take the issue very seriously, and we will not compromise our views. I am not sure what work is going on. I shall find out whether there is something that I can tell the noble Baroness, and if there is, I shall do so. She may or may not hear something.
We have great sympathy for the aims that lie behind this amendment. I thank the JCHR for its work because before I stand up and talk about these things, I look at its views and read its reports. I do not agree with everything it says, but in general—
I do not intend to go down that route, and under the Rehabilitation of Offenders Act it should not be referred to.
The amendment requires every acquisition of information obtained by the intelligence and security agencies from authorities or persons outside England and Wales to be accompanied by a statement setting out the steps taken to ascertain the circumstances in which the information was obtained and that it had not been obtained by torture is unworkable.
At one level, it is unworkable given the intrinsic difficulty of proving the negative that the information had not been obtained by torture. In the vast majority of cases, a definitive assurance would not be possible. Rather than going into an unnecessarily long explanation, it would be better to look at the detailed consideration of such matters by the House of Lords in its judgment in the case of A (FC) and others (FC) (Appellants) v Secretary of State for the Home Department (Respondent) (2004). I think it will suffice to say that trying to prove a negative does not have the quality of certainty associated with good law-making.
Another reason why the proposal is unworkable is that the intelligence and security agencies often carry out their work under considerable time pressure. The sheer bureaucracy that would be created by this proposal would impede the rapid acquisition and dissemination of what could be time-critical intelligence.
Furthermore, the volume of information involved would make such a proposal impractical to implement. Such a requirement would hamper the intelligence and security agencies in doing their vital work and would divert valuable resources away from it. In fact, the burden would be so great that intelligence services would be forced to disclose information under existing provisions without relying on or getting the benefit of Clauses 19, 20 and 21.
Last and, I hesitate to say, least, there is the issue of why the noble Lords who tabled this amendment framed it so that information given to the intelligence services by individuals in Scotland would require certification concerning torture when information from individuals in England and Wales would not. I shall leave them to explain their thinking.
I started by saying that the Government have sympathy in the aims that appear to lie behind the amendment. Let me make clear the position in regard to torture. I make no apology for repeating what has been said here, and elsewhere, earlier. The security and intelligence agencies do not participate in, solicit, encourage or condone the use of torture or inhumane or degrading treatment. For reasons both ethical and legal, their policy is not to carry out any action that they know would result in torture or inhuman or degrading treatment. There is also the pragmatic reason that one can put little store by what is got out of someone being tortured because he will say whatever comes into his head and, if he has nothing, he will tell something.
UK policy on torture is very clear: we unreservedly condemn the use of torture and take allegations of mistreatment very seriously. We abide by our commitments under international law, including the UN convention against torture and the European Convention on Human Rights and expect all other countries to comply with their international obligations.
Evidence found to have been obtained as a result of torture would not be admissible in criminal or civil proceedings in the UK, apart from in prosecutions of individuals believed to have been involved in torturing others.
The provenance of intelligence received from foreign services is often obscured. Where it is clear that it has been obtained from individuals in detention, such intelligence is very carefully evaluated. The prime purpose for which we need intelligence on counterterrorism targets is to avert threats to British citizens' lives. Where there is reliable intelligence bearing directly on such threats, it would be irresponsible to reject it out of hand. If we fail to do everything in our power to protect the lives of our people, that will be a fundamental abdication of our responsibility as a Government.
For the reason that I have given, I believe that the amendment must be rejected.
I find the noble Lord’s reasoning compelling; it seems to need to make complete sense. Those at Bagram air base, the Pakistani joint intelligence service and the Syrians are people from whom we all get information. In those places, there has been well documented evidence of ill treatment. The Americans have certainly used waterboarding, which President Bush says is not torture; we say that it is. I leave those questions hanging in the air, because the implication is obvious. These people have reputations for behaving rather badly. Would the noble Lord like to comment before, I hope, the noble Lord, Lord Dubs, withdraws the amendment?
Like the noble Lord, I believe that the members of the security and intelligence services, for whom I do not speak, would be in sympathy with the thinking and tenor of the amendment. We all abhor torture. Some of what has now become apparent about its use since 9/11, in particular, was not apparent at the time. That has required the intelligence and security services to rethink how they do a number of things, because of the possibility of torture as a result of their inquiries, for example.
That is a serious issue that causes tremendous concern among my former colleagues. Dealing with it is a practical point. It may help the Committee in thinking about the issue if I pick up the point made by the Minister about scale. If we receive a piece of information from an unnamed country that we suspect—or, indeed, know—to have practised torture once a week or once a fortnight, it becomes almost impossible to get the sort of assurances required to ascertain exactly how that information was obtained and, as far as possible, to ensure that it was not obtained by torture, given that we have thousands of pieces of information a week. So, rather than dealing with each specific piece of information, it is essential to have, as exist, policies designed to be compatible with the law and ethically defensible to deal with countries that we know or suspect of using torture.
We can only approach this in that generic fashion, because to do it specifically, case by case, would lead us to the bureaucratic problems to which the Minister referred. I assure the Committee that, of the many issues that concerned me when I was director-general of the service, the possible use of torture by our allies and its effect on the morale of my staff was my top concern.
I am grateful to all Members who have taken part in this short debate. I am aware that the noble Baroness, Lady Manningham-Buller, although she does not speak for the service, speaks with a great deal of knowledge. Those of us who have tended to make rather glib statements will have to be more careful in future, as we have to be when the noble Baroness, Lady Neville-Jones, is here. We can no longer make these sweeping statements because they are watching us.
This is a serious issue, and I very much appreciate my noble friend’s forthright condemnation of torture. That is absolutely fundamental. I suppose that many of us were shocked when our American friends started justifying waterboarding as a legitimate practice rather than a form of torture. I think that everyone in the Committee would say that waterboarding is a form of torture. Our concerns were heightened because we felt that if our American friends are prepared to justify a form of torture, we must be doubly careful that we remain absolutely clear.
I appreciate the point about the volume of information and excessive bureaucracy. Nevertheless, I am grateful for my noble friend’s forthright statement of condemnation, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 20 [Disclosure and the intelligence services: supplementary provisions]:
28: Clause 20, page 15, line 42, at end insert “, or
(c) breaches—(i) the Human Rights Act 1998,(ii) the UN Convention Against Torture, or(ii) any other relevant international obligation concerning the disclosure and use of information.”
The noble Lord said: This amendment, too, stems from discussions in the Joint Committee on Human Rights. Clause 20(2) says:
“Nothing in that section authorises a disclosure”,
and mentions two bits of legislation, the Data Protection Act and the Regulation of Investigatory Powers Act; so those must be adhered to.
The amendment simply seeks to add certain other bits of legislation on a par with the ones that have already been mentioned. I believe the Minister will say that these are not necessary. If itemising the Human Rights Act and the UN convention against torture is not necessary, why are we including the Data Protection Act and the Regulation of Investigatory Powers Act? If we mention two bits of legislation in this clause, why cannot we mention others just to be on the safe side? I am not quite clear what the logic is. I beg to move.
My noble friend Lord Dubs has shown me the error of my ways in getting people fully briefed before these events. They then know what I am going to say, which is an issue.
The amendment is unnecessary, as nothing in Clause 19 authorises, purports to authorise or can reasonably be taken to authorise a breach of the Human Rights Act 1998 or a breach of the UN convention against torture. Proposed new paragraph (iii) refers to “relevant international obligation”, which could have such a wide application that without further qualification no one could be sure what is included and what is excluded.
As I have said before, passing laws that have no effect is generally held to be bad law. This in no way decries or diminishes the importance of the Human Rights Act or the convention against torture, which we feel are extremely important. However, if we were to follow the logic proposed here, we could add a long list of criminal offences that Clause 19 did not authorise. The Government, when drafting Clause 20, thought it was helpful clarification to say that nothing in Clause 19 affects the working of the Data Protection Act or the Regulation of Investigatory Powers Act. It could be said that these, too, were unnecessary, as my noble friend said. They were included because they were cited in parallel provisions that relate to SOCA in the Serious Organised Crime and Police Act. One reason behind Clauses 19 to 21 is to place the intelligence services on to a similar statutory footing to that of SOCA in the disclosure of information. That is why we did it. I hope that, with that explanation, my noble friend will feel that the amendment is unnecessary.
I am grateful for my noble friend’s explanation. It is 90 per cent okay—perhaps that is churlish of me—but I am grateful to him. I hope that he will not stop his officials briefing us. I would not want to think that I had abused my conversation with his officials by telling my noble friend what he was going to say. It is very useful to have a chance to talk to officials. Please do not let my letting the cat out of the bag be a reason for not doing it in the future. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 20 agreed to.
Schedule 1 agreed to.
Clause 21 agreed to.