My Lords, we live in a country where crime is falling, and I glad to say that perception is slowly beginning to reflect that reality. Since 1997, overall crime as measured by the British Crime Survey has fallen by 36 per cent, including a 41 per cent fall in overall violence and a 54 per cent fall in domestic burglary. Confidence in the police at local level is rising, with half of people saying that the police and local councils are dealing with the anti-social behaviour and crime issues that matter in their area.
This is testament to the significant achievements that this Government have made in tackling crime since 1997: an overhaul of the youth justice system, the adoption of a multi-agency approach to crime and a specific emphasis on anti-social behaviour where there was none before. We have provided record levels of funding, more police and a comprehensive approach to violent crime, drugs and the reduction of reoffending. It is in this context that I ask noble Lords to consider the Crime and Security Bill. This is a wide-ranging Bill with one area of particular controversy, DNA retention, at its centre.
I am proud to serve in a Government who have consistently provided the police with the tools and support that they need to protect our communities. British policing is the envy of the world, and nowhere is this more apparent than in our use of DNA in investigations. Pioneered in Britain, DNA profiling is one of the breakthroughs of modern policing. It not only provides crucial leads on many crimes, it also eliminates individuals from inquiries. In a world without DNA evidence, thousands of crimes would go unsolved, more dangerous criminals would be walking our streets and victims would be denied the justice that they deserve.
The retention of an individual’s DNA profile is not a punishment. Being on the database does not mean that someone is a criminal. Indeed, the fact that your DNA is on the database is effectively not known by anyone. A profile on the DNA database, derived from a DNA sample, consists of 10 pairs of numbers and a genetic sex marker. It does not contain any other personal information.
The DNA database exists to provide justice for victims of crime. That is why we have placed the rights of victims at the heart of the DNA proposals in the Crime and Security Bill. Of course, we must be careful to strike the right balance between collective security and personal rights to privacy. I think that all sides of this House agree that we should retain the DNA profiles of those who have been convicted of a recordable offence. That is why the Bill includes powers to take DNA from those convicted of the most serious offences in the days before DNA was routinely taken in inquiries. These powers will apply to those convicted in the United Kingdom or overseas, but will be available only where a senior police officer judges that the taking of DNA is necessary to assist in the prevention or detection of crime.
While we all want to ensure that the convicted are all on the database, I do not think that a universal database would be proportionate or practical. That leaves us with three questions. First, should we retain the DNA profiles of individuals who are arrested but not convicted? Secondly, if we do retain such profiles, should we differentiate between those arrested for serious and less serious offences? Thirdly, how long should we retain these profiles on the database? The answer to these questions is, ultimately, a matter of judgment, but that judgment must be informed by evidence. One should not simply pluck an answer out of the air because it sounds about right, yet this appears to be some people’s approach.
Those on the opposite Benches—although I am a little confused about the exact Lib Dem position—would have us adopt the Scottish DNA retention model, which was based on no research whatever. Indeed, the Scottish police do not agree with their own retention model; I refer noble Lords to the statement from ACPOS Scotland of 23 February 2008. The evidence base that we have now developed did not exist when our colleagues in Scotland were setting retention periods. Evidence, not assumptions, should be our guide on an issue of such importance to public protection.
The Opposition’s proposals, like ours, recognise that those who are arrested for an offence, even if they are not convicted, pose a higher risk of offending in future, but in other areas I am afraid that they have simply got it wrong. The Opposition would retain the DNA profiles of those arrested but not convicted only where that arrest was for a serious crime, yet the evidence shows that the seriousness of the offence for which someone is initially arrested has no bearing on the likelihood of re-arrest or the seriousness of any subsequent offence.
The Opposition would retain the DNA of those arrested for serious crimes but not convicted only for an initial period of three years, yet the evidence shows that six years is more appropriate. Those who have been arrested but not convicted have a higher risk of offending, as measured by re-arrest, than the general population for six years following the first arrest.
I am aware that the Constitution Committee of your Lordships' House and the Joint Committee on Human Rights are concerned that our proposal to retain the DNA profiles of those arrested but not convicted for six years is liable to be ruled disproportionate when this issue returns to the courts. The Information Commissioner expressed similar concerns in an appendix to the Constitution Committee’s report on the Bill. My right honourable friend the Home Secretary wrote to the Information Commissioner on 19 February setting out our response to those concerns, and I am happy to place a copy of that letter in the Library of the House if it would assist your Lordships’ consideration of the Bill.
The concerns of these various bodies can be boiled down to a single sentence: our proposals are not compatible with the European convention, and a retention period of six years is too long. Noble Lords will be unsurprised to learn that neither I nor the Home Secretary agrees, and that is why we have both made statements of compatibility under Section 19(1)(a) of the Human Rights Act. In his letter the Home Secretary said,
“Our research suggests that we would expect most of the benefits of DNA retention to occur in the first two or three years following an initial arrest. But there are still benefits to be gained from retention beyond that point, to six years and possibly significantly longer. If there is still a greater risk of offending within that time period, I could not justify a murder or rape case not being brought to justice because an offender had had his DNA removed earlier. Our approach ensures that DNA profiles are only retained where evidence indicates it will have an added value”.
There has been some discussion in the press of late about the overuse of cautions. I do not intend to get into that debate this afternoon, except to point out to your Lordships that all individuals who are given an official police caution in lieu of court proceedings have admitted that they have broken the law. Yet the DNA retention model proposed by the Opposition would put those who have been cautioned in the same position as those who are innocent of all charges. Such a policy, I believe, is fundamentally misguided.
An appalling recent example shows us why. During 1989, two women in their mid-thirties were raped in south London, some five months and a couple of miles apart. In both cases, the victims went on to suffer emotional breakdowns soon after the attacks. Tragically, the second victim committed suicide. Forensic samples taken from both the victims provided the DNA profile which linked the attacks but no suspect could be identified. With no other witnesses or leads the trail went cold and the investigations were brought to a close.
Some 12 years later, Andrew Thompson was arrested and subsequently cautioned for a minor drugs offence. His DNA was taken when he was arrested and retained on the National DNA Database. In 2008, the rape files were reviewed by the Metropolitan Police Sapphire Cold Case team. The forensic samples were upgraded and searched on the National DNA Database where they matched Thompson’s profile. Thompson was arrested on 18 May 2009, charged with both rapes which he denied. However on 5 November, four days before the scheduled start of his trial, he pleaded guilty to both rapes and was sentenced to 11 years on each count of rape. His name was placed on the sex offenders register for life.
Under the Opposition’s proposals Thompson’s DNA would have been destroyed as soon as he was cautioned. Without this crucial DNA match, Thompson, who had already escaped justice for more than 20 years, would still be free while his victims and their families live with the horror of the events of 1989. Surely that cannot be right?
So what would the Opposition’s proposals mean in practice? Put simply, if we adopt the Opposition’s proposals we would be failing victims of serious crime. Under their model, at least 23 victims of the most serious crimes could have been denied justice in the last year alone, and that is 23 victims too many. We are not prepared to expose the public to that kind of risk.
However, we recognise the concerns expressed in the other place and elsewhere when DNA profiles have been retained on the database in clearly inappropriate circumstances. My honourable friend Diane Abbott MP spoke in Westminster Hall last December about a constituent who had been arrested for shop lifting when she was just trying to return a jumper she had bought the day before. That is why Clause 14 of the Bill includes some objective circumstances where the police will be required to destroy DNA profiles without the need for an application. Clause 23 will put in place binding guidance to ensure that all police forces deal with applications to destroy profiles in a consistent manner. From that the bar for destruction will be lowered significantly from the current exceptional-circumstances test.
I am aware that DNA retention is a contentious issue and I suspect that, regrettably, some of you may not be persuaded by my arguments. However, I would remind your Lordships that the proposals in the Bill on DNA retention are designed to comply with the judgment of the European Court of Human Rights in December 2008. The Government brought forward proposals in the Policing and Crime Bill last Session, which we withdrew when your Lordships expressed reservations over our proposed use of secondary legislation. If the Government’s proposals are rejected again, we would have to legislate early in the next Parliament to comply with the European Court’s judgment. Pragmatically it is very unlikely to reach the statute books until December and I believe that will cause us some problems with Europe.
Our proposals are proportionate and strike the right balance between the rights of the individual and collective security. Indeed, we are going further than required by the Court in proposing the destruction of all DNA samples within six months of a sample being taken. But this Bill is not just about DNA. It is about protecting our communities, preventing crime and providing justice for victims.
There are other measures in the Crime and Security Bill that deserve your consideration and, I hope, your support. It is a sad fact that many women in this country have experienced the devastating effects of domestic violence. Although domestic violence rates are falling, we believe there is more that can be done to help. That’s why this Bill will enable the police to apply for a Domestic Violence Protection Order. DVPOs—I hate acronyms but that is the one for this—will enable the victim and their children to stay in the family home rather than seek help from a refuge. It will give them the breathing space and support they need to consider their options. DVPOs have received widespread support from leading women’s groups such as Refuge as well as the Home Affairs Select Committee.
During debate in the other place, some Members raised concerns about the practicality of an application for a DVPO being heard by the magistrates’ court within 48 hours. The Ministry of Justice and Her Majesty’s Court Service have consulted magistrates’ courts across the country and are confident that the courts will be able to hear applications within this period. DVPOs would be used like other emergency protection orders, where it is already common practice to seek an urgent magistrates’ hearing. Furthermore, the 48-hour period would exclude all Sundays and public holidays.
Unscrupulous individuals and businesses are always looking for ways to exploit our hard-working citizens. The economic downturn has served to amplify the effects of this exploitation. One area of particular concern to the public is the often exorbitant fines imposed by many wheel-clamping businesses. This Bill will introduce compulsory licensing to regulate the practices of wheel-clamping businesses on private land, including a code of practice with criminal penalties for breach, and a fair and independent appeals process for motorists.
I turn now to a topic which I know is of particular interest to this House. I am sure your Lordships will be aware of the very good work of my noble friend Lord Brennan in highlighting the plight of British victims of overseas terrorism. It is sadly the case that in recent years there have been a number of terrorist attacks abroad where British citizens and other westerners have been targeted simply because of their nationality.
Terrorist acts are intended as a political statement and an attack on society as a whole. I believe it is right that as a tangible expression of sympathy, society should compensate the victims of terrorist attacks abroad in recognition of the injuries suffered. By introducing a new Victims of Overseas Terrorism Compensation scheme, this Bill will help the innocent victims of these despicable acts to rebuild their lives. I sincerely hope that all sides of this House will unite behind this important measure.
Some noble Lords are concerned that the Bill has revisited legislation that has been recently enacted, but we have a very good reason for doing this. The majority of violent gang members are over 18, and that is why we brought forward provisions in the Policing and Crime Act 2008 to create a new civil power to manage violent adult gang members. Unfortunately, it is a sad fact that under-18s can perpetrate the same horrendous gang violence as their adult peers, and the news is full of such an event as I speak. It has always been our intention to apply gang injunctions to under-18s but we wanted to be absolutely sure that we created a tool with the necessary safeguards for youth justice. To that end we have worked closely with the Ministry of Justice, the Youth Justice Board and the Department for Children, Schools and Families to create the new power in this Bill; a power which contains those necessary safeguards.
Independent evidence shows that anti-social behaviour orders are effective when used appropriately. That means making well-informed decisions. Parenting-needs assessments help target the root causes of a young person’s bad behaviour. This means that if the court issues an ASBO, agencies can ensure that the right support package is in place to nip that anti-social behaviour in the bud. We think that parenting needs assessments should not be optional. This Bill will ensure that all agencies thoroughly investigate a young person’s family circumstances when considering them for an ASBO.
Parenting orders direct parents who lack the skills to control their child’s behaviour to parenting programmes. They are an effective tool in tackling anti-social behaviour, but are not being used often enough. Mandatory parenting orders when a child breaches an ASBO will ensure that parents are fully engaged with the authorities in the actions to stop their child reoffending.
We made it clear when we introduced 24-hour licensing in 2003 that we would keep the new licensing regime under careful review. In many places, the new licensing regime has been successful, but the position is not the same everywhere. Evidence has shown that there has been an increase in alcohol-related violence in the early hours of the morning. That is why we have introduced provisions in this Bill which will empower licensing authorities to restrict the sale of alcohol in problem areas between 3 am and 6 am.
The Government are committed to cutting police bureaucracy so they can spend more time driving down crime. We have removed police targets and replaced them with a single top-down target on public confidence. We have invested in mobile data devices for the police to send and receive information on the beat, and we have removed the lengthy stop and account form. This Bill will further reduce police time spent on paperwork by reducing the information requirements when the police carry out a stop and search. When used with mobile devices, officers will only need to manually record two pieces of information.
The Bill will also make it an offence not to keep an air weapon under lock and key and well out of the reach of children. It will also make it an offence to possess a mobile phone in prison without authorisation. Currently, only taking a mobile phone into a prison is an offence.
This is the Bill of a Government, I believe, with a strong track record on crime. The Crime and Security Bill will bring greater protection and peace of mind to the public and make our streets safer. I beg to move.
My Lords, I thank the Minister for his explanation of the Bill. I wish that I shared his enthusiasm for some of its provisions.
This Home Office Bill, like some others, is a jumble of unconnected items, some of them barely different from legislation passed in the past Session, the effects of which, whether good or bad, can scarcely yet be known. The Government have already come back with further legal elaborations on such areas as gangs. It would be nice to have Bills that took strategic steps forward on the basis of well thought through policy objectives instead of being faced with successive pieces of proposed legislation with untidy little zigzag steps, without clear direction. Indeed, in this Bill we have the spectacle of laws passed in quick succession reversing provisions that were previously whipped through. I shall come back to that.
Legislating in this way reduces the chances of effective implementation, since those who are called on to implement do not know what they are really being asked to achieve. The result is a vicious circle, whereby poor legislation leads to poor implementation, which is responded to by yet more legislation. We have seen that in successive Bills. It does not result in good policy. No wonder the quantity of laws passed seems to have so little deterrent effect on what actually happens on the streets of Britain. A Conservative Government will do better.
These strictures characterise this Bill. Let me say straightaway that we are not critical of the aims of the Government in all areas, nor do we disagree with them. I cite one that has our wholehearted support. The compensation for victims of terrorism overseas has cross-party support, and putting right this anomaly is long overdue. But other areas, such as restrictions on the sale and supply of alcohol, represent a pretty strong reversal of one of the Government’s hallmark policies of earlier years. Their previous policy was nothing if not short-sighted and pretty damaging. It was pushed through despite the warnings. We on these Benches said at the time that the claimed reduction in alcohol-related disorder would not materialise and called for decisions about late licensing to be made locally by those who knew local conditions, not dictated from Whitehall. The Minister claims that this policy has been successful in many places. One would like to know where. In our view, the result of the Government’s policy has been the very opposite of the reduction of all the things that we have been seeking to reduce; indeed, one has seen an increase in binge drinking.
Then there are the tinkering provisions. The whole House wants to see a reduction in anti-social behaviour, binge drinking, gang violence, the scourge of domestic violence and out-of-control wheel clamping. Indeed, these are all things that make daily life a misery for a good many people across the country. Our aim should be not reduction but abolition.
The Minister started out by making a rather self-congratulatory statement on how crime has been reduced in this country. He cited the British Crime Survey, which is not a reliable measure of what actually happens regarding crime in this country. A survey that excludes juveniles, even if they have committed murder, does not form a good evidential basis for what is actually happening. The evidence—certainly anecdotal evidence—is that there is a rise, particularly in juvenile violent crime.
So how do these tinkering provisions improve what has already been put in place in the recent Policing and Crime Act? The 2009 Act resulted in many questions, not least about the practicality of some of the clauses. The proposals in this Bill are really no different. My noble friend Lord Skelmersdale will focus on this in his winding-up speech. He will also look at DVPOs; questions arise out of the Government’s proposals that need clarification, although we are in favour of this issue being tackled.
In other areas of the Bill, I question whether primary legislation is needed. A lot of it should be common sense. That is certainly true of Clause 45, which creates a new criminal offence of possessing an unauthorised mobile phone and other data devices in prison. It has for many years been an offence to take a mobile phone into prison. How, therefore, can it not be an offence to possess these devices when in prison? It seems to me that this is legislative nonsense. I come back to implementation—the real problem is a failure to implement existing law, as a result of which there is a problem of significant scale.
Between 2006 and 2008, there was a 350 per cent increase in the number of phones and SIM cards found in prisons; during the same period, the number of phones and SIM cards found in high-security prisons doubled. In December, the noble Lord, Lord Bach, said that these figures,
“understate the actual number of finds”.—[Official Report, 14/12/09; col. WA 186.]
Can the noble Lord, Lord West, say what is meant by this? Presumably the actual number of finds, in turn, understates the actual number of still undiscovered mobile phones and other devices in prison. The Government seem to think that by finding more phones they are solving the problem. But what about parts of phones? These things are easily dismantled and put together and they can be easily hidden. Will the possession of part of a device also be an offence? What will be the penalties for possession? Can the noble Lord expand on the Government’s strategy for countering the difficulty of finding little pieces? There is a genuine problem, but in legislating for an offence and making it yet more detailed the Government have a duty to tell us how it will be made an effective piece of law and not something else that simply sits on the statute book and is abused by those who evade it.
If a good many parts of the Bill could be described as common sense, others do not go far enough. Over the years, we have seen our police spending more and more time on process rather than on policing. The latest measures on stop and search are certainly a step in the right direction after many years of pressure from these Benches among others, but frankly they do not go far enough. They reduce the recording requirements for each stop and search incident from 10 to seven items. The noble Lord said that only two of them need to be recorded manually but, for goodness’ sake, the forms and the manual stuff should be scrapped entirely and replaced by an officer radioing in the basic details of the search. Our task, surely, is to simplify the work of professionals, not just to fiddle with the level of the burden on them.
The Government have also had the opportunity in the Bill to address other problems connected with stop and search. I raise here an important issue. The case of Gillan and Quinton has seen the Government on the wrong side of the law. Rather than implementing the judgment by enacting provisions that would give clarity to the limits of the powers and the safeguards against abuse of them, the Government have said that they will appeal, even though there are doubts about whether there are grounds available for this to be done. This leaves the police in considerable uncertainty for an indefinite period. That is deeply unsatisfactory and not calculated to improve relations between the police and the local communities. I hope that the Government, in winding up, will address themselves to this important point.
If more evidence of a lack of common sense were needed, one has to look only at the Government’s approach to control orders. There is a search provision in the Bill, presumably responding to the two court judgments that found that the legislation as currently drafted was insufficient to authorise such a power and obligation. The Joint Committee on Human Rights has said:
“If we are keeping control orders, do we need to change the legislative framework to reflect more accurately the way the courts require the system to be operated?”.
Is this not the point? The Government are tinkering again, instead of acknowledging that, if the control order regime is to continue to exist, it cannot be in its present form. If the Government can respond to one ruling, they can surely respond to another. Why, if they can do so in relation to powers of search and seizure, do they still decline to act in relation to the special advocates system, disclosure of information following the case of AF and the need to keep the prospect of prosecution continuously under review at an appropriate level? The scale is tipped further in the direction of security, without even acknowledgment of the existence of issues relating to fundamental freedoms. Security is very important but we have always to balance it with the freedoms that we want to preserve.
Just as the control orders demonstrate the Government’s tendency to focus on security at the expense of freedom, so does the sorry history of the DNA database. I am aware of what the Minister has just told us—appealing, at last in this game, to the question of what the evidence shows. The UK has, for years, been storing the DNA of innocent people on a national database. People who go into a police station voluntarily to help with an inquiry find themselves on it. People who are briefly questioned in a police station may also find themselves on it. There is also, as we know, a difficulty about getting off the database. People mistakenly arrested can find themselves on it. There remains an issue of what this database is for and who should be on it.
The House knows that, following an ECHR ruling, the Government have accepted that the current system of keeping innocent people’s DNA indefinitely is illegal. They tell us that the proposals before us meet the requirements of the ruling. The Minister criticised the system that prevails in Scotland. I cannot remember the words that he used, but he suggested that it was not based on evidence—that it had been put together without any due regard to what the evidence might show. I cannot remember his exact phrase but it was not complimentary. In the absence of a much better put together case than the assertions that we heard this afternoon, the Scottish system has shown that it is capable of delivering. It is the reason why we on these Benches prefer that model. We believe that the state should not retain the DNA profiles of those not convicted of an offence, except in circumstances where the charges relate to a crime of violence or of a sexual nature.
Rather than keeping the profiles of those who should not be on the database, the Government should focus on other avenues. The Minister cited some of the cases of people whose offences were 20 years old, many of whom are not on the database. I agree that the Government should focus on those avenues. They should focus on maintaining DNA from crime scenes to help to solve cold cases. Adding those persons who have been previously convicted or are in prison but are not on the database is another area where the Government should focus their energies. Because of recidivism and because DNA is a useful detection tool, we on these Benches certainly agree that retrospective powers would be right in this instance. They would deal with many of the points that the Minister made.
We do not need a system that is outside the rulings of the ECHR to achieve an effective database for the prosecution of criminal offences. Can the Minister say how, in proposing retrospective powers, these will be implemented? I understand that implementation and the decisions that the police will take will be based on tests of necessity and proportionality. Those are two very general terms. It would be very helpful to know—and I hope that the Minister can be specific on this—how such tests would be defined and what guidance would be given to the police. These are important details and could certainly lead, in the absence of tight guidance, to huge variations in the interpretation of what constitutes necessity and proportionality.
We also need to improve the accountability of the DNA database. The Minister did not mention this point, but giving the National DNA Database Strategy Board a central decision-making role on the removal of samples is certainly welcome. Again, can the Minister assure the House that the guidance and decisions of the board will be binding on chief constables, so that we put an end to what is otherwise a form of postcode lottery? It would also be helpful to know what the timescale will be for the production of this guidance. Is the Minister confident that the board will produce appropriate guidance and make appropriate decisions? The board has existed for many years but so far has not done so. That is why we are glad that the Government have accepted our proposals to improve the accountability of the board to Parliament. That will spur the board into rather greater activity.
The overwhelming impression that one gets from the Bill is that the Home Office has little vision and no strategy. The Bill identifies a Government who are out of gas—a Government who are grinding to a halt. The country needs a more purposive and vigorous approach to the challenges of crime and security.
My Lords, I first read the Bill in its original form as it started in the Commons. What struck me most, as I said to the Minister a week or two ago, was that there are so many alterations to recent legislation in it, including to some which is not yet in force. I read it as having a rather panicky tone. It asks what can be thrown into the pot of the criminal justice system and called “security” to give it some gravitas. It is ironic that the panic now in the Home Office must be over how much of the Bill can be saved.
I thank the Minister for his explanations of the Bill and congratulate him on sailing along the surface so serenely; he must have been paddling very hard beneath it. I do not want to describe the Bill as a ragbag. The issues it covers are serious, though it is not obvious that there is a common thread, except that many are subjects where the Government think they can show some muscle in a slightly populist way, or where they have been told by the courts that the current arrangements just will not do.
Having started on a negative note—and I will return to some negativity—I acknowledge some positives. I welcome the provisions on domestic violence. I declare an interest, having for many years been on the board—and indeed chair—of the charity Refuge. I learnt then that one woman in four experiences domestic violence. Men can be victims too, but statistically there are far more women in this situation. I learnt that two women a week are killed by their current or former partner in England and Wales. I will not spend time on the numbers but domestic violence is a crime. It is caused by the abuser’s desire for control; it can be physical, emotional, financial and psychological; and it is not a private matter—it is a social issue.
I know that refuges have been a lifeline, but it is too easy to say that they are the solution. None of us would like to have to leave our own home for whatever reason. I cannot imagine what it must be like to face the need to find a way out of an abusive situation and pluck up the courage to leave. A refuge, good as it may be, is not home. The person at fault should leave, not the victim or the children of the relationship. A third of the residents in a refuge are children, almost always having witnessed violence. The impact on them is long-lasting and damaging. There are complicated emotions in all of this. Home, which is familiar, should be the haven.
I welcome these provisions while worrying a little whether they are necessary. I understand that the relevant provisions of the Family Law Act 1996 are not yet in force. They might have addressed some of the points. Violence and abuse is an offence. Something in what are called go orders hints at a mindset that this is not really like other breaches of the law. A go order is not a substitute for arrest and charge. I reassure myself that these provisions are pragmatic, though it is not obvious that all the ancillary provisions are appropriate.
Still on the theme of children, on ASBOs, I do not deny the importance of good parenting but I am doubtful that the intervention of the court—or the threat of intervention, as the Minister might say that these provisions are a deterrent—is appropriate or likely to be effective. We seem almost to be using the civil courts to criminalise people. These provisions do not suggest that that will be productive.
On gangs, again we are opposed to criminalising children through the extension to under-18s of gang-related injunctions, the breach of which takes us into criminal law. These have been described as a means to circumvent the protective guarantees of the criminal justice system by using the civil courts. As was said in evidence to the Commons, they would be a measure of last resort. None of the range of interventions for young people is any use unless used properly. The concern here is that this is a shortcut, bypassing the youth justice system, and should be a last resort. The provisions amend the 2009 Act regarding over-18s. What assessment has there been of those provisions? The Minister referred a good deal to evidence in other contexts. What evidence do we have of the use of these provisions as they apply to the older age group?
Quickly on other provisions before returning to the largest rag in the ragbag, on stop and search, will reducing the number of items to be recorded from 10 to seven make much difference in the time that is taken? We do not oppose these provisions but they do not address the issues of huge disproportionality between different ethnic groups or the stop and search of young people and so on. They may make it more difficult to make an effective complaint or bring a civil suit in the case of unlawful stop and search. Form-filling is not necessarily needless bureaucracy. It is certainly not needless if it supports accountability.
Searching a person subject to a control order seems an example of the obvious. On these Benches we do not support control orders but, as we have them, it is reasonable to correct the oversight in the regulations. Much the same may be said about mobile phones in prisons. If the advances in technology mean that there is a technical loophole then we accept that a new provision is needed. Unlike the noble Baroness, I can see that there is a difference between taking a mobile phone into a prison and having one. Different people will commit those offences—or would-be offences.
We do not think the clauses on the private security industry are in any way adequate but they are not harmful. On air weapons, many of your Lordships will have received a letter from the Home Office preceding this Second Reading which, among other matters, talks of,
“ensuring that air weapons are safely locked up”.
Legislation does not ensure anything. It creates an offence and that is different. The extension of the alcohol restriction orders seems more populist than relevant.
We welcome the scheme for those affected by terrorism overseas and congratulate the noble Lord, Lord Brennan, on his work. The Home Office letter I mentioned talks of overcoming the trauma of attack. I would not claim that money can ever do that but these provisions are more about fairness wherever the attack took place. The big “but” here is that, as the Delegated Powers and Regulatory Reform Committee pointed out, there is no commitment to implement the scheme.
The largest rags in the ragbag are DNA and the taking and retention of fingerprints and samples. I was chided by the Minister on a previous occasion when I said that the Government’s approach to legislation seemed to be to push at the boundaries and wait to see if they are not knocked back. In this area, the Government have been knocked back. Importantly, apart from the merits, are the Government confident that they will not be knocked back again? The proposals in the Bill may be a little less “blanket and indiscriminate”—to use the ECHR’s phrase—but there is widespread doubt that they are proportionate as regards the data retained and the length of the retention. There is a widespread view that the provisions for removal from the database are inadequate; among other things, there is no independent appeal mechanism. The Minister refers to the Government’s evidence but such evidence is small and fairly thin.
Another widespread view is that the National DNA Database can and should play an essential role in operational policing. I fear the Government jeopardise that if they fail to apply the proper criteria and safeguards. The Minister will say that he cannot guarantee the outcome of any court case but can he say that the Government have had as unequivocal advice as it is reasonable to expect that what they propose will not be found wanting? I ask this as a serious question. Or, are the Government cynically trying to buy themselves a few years of illegal powers before there is another court case?
Clearly, the Government cannot leave things as they are after Marper. It is also clear that neither we nor the Tories are prepared to accept what this Bill proposes. My party starts from the point that DNA should not be retained on a database unless the person has been convicted. In our technically advanced world, the presumption of innocence over guilt should still hold and arrest should not be confused with conviction. It is argued that one has nothing to fear if one has done nothing wrong. You have something to fear as your DNA could be matched to DNA found at a crime scene because you have been there at an earlier date. It begins to look like you need to prove that you are innocent, not that the prosecution needs to prove guilt. Undoubtedly, there is a stigma. People feel there is a stigma—an implication of criminality. That is a serious point. The Grand Chamber thought so even if the Government do not.
Innocent people who may not feel stigmatised certainly feel aggrieved. Intellectually, it is more coherent to say that the database should include the DNA of every citizen rather than that of some who have been convicted and some who have been in the frame, but I accept that that is not a widely held view. Public support is essential. I do not believe that the Government have general public support for what they propose with regard to the blanket six-year retention period. Indeed, the Police Federation said that it was unsure whether public confidence could be achieved by retaining the DNA of innocent people. I have often thought that Scotland is a more advanced and civilised nation than England and, as the Government know, we would be prepared to accept the Scottish model as a compromise.
In conclusion, we have, as ever, been much assisted by the committees of this House and Parliament, by the memorandum of the Information Committee to our Constitution Committee, and by outside organisations—especially Liberty and Justice, which I thank. This Second Reading has an air of artificiality, given its place in the timetable. Certainly, it is no way to legislate, and I do not suppose that the next few days will do much to reassure anyone that the details and subtleties of the Bill are being considered as they should be.
My Lords, in his opening speech, the Minister dealt at length with fingerprints and the retention of DNA samples, covered by Clauses 1 to 28 of the Bill. He was right to do so because they are clearly matters of great importance. However, I will confine myself to two matters at the other end of the Bill—gang violence and control orders. Before doing so, since this is the very last piece of legislation to come before us during this Parliament, it is tempting to look back a little. That, with the permission of the House, is what I propose to do. Here follows my end-of-term report on the Government, covering the past five years. I promise the House that it will be brief.
Future historians will look back on these past five years and identify two main areas of criticism—the way that the Government have dealt, first, with constitutional reform and, secondly, with the criminal law. I will say very little about the constitution, because we had a full debate on it only last week, in which many remarkable speeches were made. However, I should like to add just one small footnote.
As I listened to that debate, my mind was inevitably taken back five years to the end of the previous Parliament, when we passed the Prevention of Terrorism Act in 2005. It took me back to the announcement, which I am sure we all remember, in a press release from Downing Street, in which it was stated that the office of the Lord Chancellor would be abolished and the Law Lords would be removed from the House of Lords. We were told that there would be consultation on the details of that, but that there would be no consultation on the policy; the policy decisions had already been taken, and that was that. In other words, we were faced with an exercise of executive power at its most presumptuous.
Needless to say, as it turned out, the Government soon came unstuck. They found that it was simply not possible to abolish the office of Lord Chancellor. Instead, the Long Title of the Bill was amended to state that the office would be only modified. But the Lord Chancellor is still with us; he still presides over the Lord Chancellor’s Department—exactly in the same way that he always did—except that the department is now called the Ministry of Justice. Indeed, the Lord Chancellor is enjoying something of a renaissance. I refer to the office, rather than to the Lord Chancellor himself. In the recent Constitutional Reform and Governance Bill, I see that he, instead of the Prime Minister, is to take charge of recommending judicial appointments. That is of course exactly what he always used to do. One might even imagine that one day he will return to this House—again I refer to the office rather than the incumbent—and we might find him sitting next to the noble Lords, Lord Mandelson and Lord Adonis. In one dream I thought that the noble Lord, Lord Mandelson, and Mr Jack Straw might even change places—but that was only in a dream.
What I have said about the Lord Chancellor is equally true of the Supreme Court. We have exactly the same people doing exactly the same job. No one suggests that they are any more independent than they ever were, or that the separation of powers—the theoretical idea on which the whole exercise was based—has bought us any tangible benefit. What has been objectionable in all of this has surely been the arrogance, the cavalier attitude, of this Government to constitutional reform. The constitution is not a plaything at the disposal of the Executive. The whole point of a constitution, whether written or unwritten, is that it acts as a brake. The whole point of a constitution is that it should not be changed too easily, and certainly not at the whim of the Prime Minister of the day. In that connection, I should like to quote from the remarkable speech of the right reverend Prelate the Bishop of Durham last week when he said:
“I end by re-emphasising the two basic points. First, any and all constitutional reforms should be undertaken only in the light of a full top-to-bottom constitutional review. Secondly, elected politicians are the last people who ought to be in charge of such a review”.—[Official Report, 24/3/10; col. 975.]
That may seem to be paradoxical, but it contains a profound truth.
If we have done harm to the constitution over the past five years, as I believe we have, we have done even more harm to the criminal law. I am not thinking of the obvious things—the fact that we have more people in prison than ever before, or that we have created more new offences than any previous Government—as if these were things of which any Government could be proud. I am thinking of something much more insidious and, in the long run, much more dangerous. We have created a parallel system of criminal justice alongside the existing criminal law, using the civil courts instead of the criminal courts, a point on which the noble Baroness, Lady Hamwee, touched.
The first step is to obtain an injunction in the civil courts. The second step is to punish the defendant for breaching the injunction as if he had committed a criminal offence, which of course he has not. If he had committed a criminal offence, the facts would have had to be subject to the criminal standard of proof, but in applying only for an injunction, all that is necessary to be satisfied is the civil standard of proof—on a balance of probabilities. This confusion of civil and criminal remedies is novel and is a serious misuse of civil process. I am not alone in taking that view. In its as always very helpful briefing paper, Liberty states that this,
“constant blurring of the criminal and civil law is changing the very nature of the system of trial and punishment developed over centuries”.
That may seem like an exaggeration, but I doubt whether it is. We will come, in a few moments, to a good example of that in the Bill.
It all started, as these things often do, in rather a small way, one might think, with the non-molestation orders in domestic proceedings under the 1996 Act. Next came anti-social behaviour orders; then came drinking banning orders in 2006. I confess that if I ever knew about drinking banning orders, I have entirely forgotten them—I do not know whether they have been in any way effective. Thereafter, things became much more serious. We had the serious crime prevention orders in 2008, at the very serious end of the criminal process. Most recently, as has already been mentioned, we have had gang-related violence orders in the Policing and Crime Act 2009.
Why is this approach, which has now obviously become the custom, so wrong? The reason is quite simply this: the criminal law is meant to apply universally, to all alike. The new approach is creating little bits of criminal law which will apply only to the individual who is the subject of the injunction, and for which, if he breaches the injunction, he will go to prison—in the most recent example for up to five years.
It is not just that. It is also that these little bits of criminal law are created not by Parliament but by magistrates and judges, all of whom will be sitting in a civil court and may have very little idea of how what the injunction says relates to the criminal law as a whole. I regard this development—these new little bits of criminal law as I call them—as being wholly inconsistent with what I understand by the rule of law. We should stop the rot before it spreads any further.
I return to gang-related violence which is a very good example of what has been going on. The provisions in the 2009 Act did not apply to under-18s. The reason given by the Minister was very clear. He said that to have extended the 2009 Act to children would have involved,
“a major change in how civil law interacts with minors”.—[Official Report, Commons, Policing and Crime Bill Committee, 26/2/09; col. 566.]
That was in 2009, yet here we are in 2010 being asked to accept this major change before the ink is even dry on the 2009 Act without consultation of any kind. If Clauses 34 to 39 become law, a child of 15 could be made subject first to a wide-ranging injunction in a civil court. If he breaches the injunction, he could be made subject to a supervision order for up to six months, with a curfew requirement for eight hours a day and an electronic tag. If he then fails to comply with his supervision order in any respect, he could be sentenced to three months in a young offender institution. These are matters on which the House would, I am sure, have views which it would want to be able to express. The Government could have introduced these provisions relating to under-18s in the 2009 Act. They missed that opportunity, and it would be quite wrong to let them have a second bite at the cherry now.
I come lastly to control orders. When future historians look back on the history of terrorism, they will be impressed with the way we dealt with it in Northern Ireland during the last 30 years of the 20th century. We made a mistake in trying to impose internment, but we soon abandoned that; we realised it would not work. Future historians will be much less impressed by the way we have dealt with international terrorism in the 21st century. We have had a mass of legislation, much of which they will regard as counter productive. Control orders they will regard simply as an aberration. We all know that whoever wins the election will review control orders: both major parties have promised a review. What conceivable purpose is served by considering an amendment to the 2005 Act now?
The Security Service and the police say that the absence of the power to search is causing them operational difficulties. I am not quite sure what those difficulties are, but in any event they have had to put up with them since July last year, when the Court of Appeal held that searching those subject to control orders was not covered by the 2005 Act and was therefore unlawful. In paragraph 90 of his fifth report, the noble Lord, Lord Carlile, says in a single sentence that we need powers of search. We all owe the noble Lord a very great debt of gratitude for the work he has done in relation to terrorism, but he is not a one-man legislature.
If we allow this bit of the Bill relating to control orders to become law we will be going against the Motion which this House passed only three weeks ago, in which we said that the Government ought long ago to have replaced control orders with something better. It would be quite wrong now, therefore, pragmatically and morally, to add to the agony.
My Lords, as the progress of this Bill has adequately demonstrated, legislating in the realms of crime and security can be a hazardous business at the best of times. In Holy Week, when Christians follow the fortunes of probably the most famous victim of injustice in the history of the world, I am emboldened to intervene where angels, let alone bishops, might fear to tread.
Why is crime and security such a difficult area in which to legislate? First, in relation to crime and law enforcement, feelings seem to have an ambiguous relationship with facts. It has often been observed that even where there is clear evidence to indicate that crimes such as burglary or muggings on the street have significantly reduced in number, people’s anxieties and fear of crime simply go on rising.
Secondly, and linked to this, is the very emotive nature of crime and punishment in the public imagination. We want felons to be apprehended and punished, but we are not always sure exactly how and why. Even when we know that punishments meted out on a routine basis seem to have little or no effect in terms of deterrence and reducing recidivism, we still want the police and judiciary to go on meting them out nevertheless.
Thirdly, and more philosophically or even theologically, this is an area of governance where the subtle art, as we have heard this afternoon, of balancing the competing demands of liberty on the one hand and security on the other requires at least the wisdom of Solomon and calls on us to be, as Jesus put it, as wary as serpents and as innocent as doves.
I am sure that your Lordships will agree that it would be ironic if Parliament, which legislates to protect the liberty of the citizen, became the legislature from which the citizen needed to be liberated. It would indeed be ironic if a Government who have done so much to promote racial equality ended up giving comfort to the evil agents of racial discrimination. It would indeed be ironic if the state, which has a duty to protect children, became the threat from which children needed to be protected.
None of these would be the intended consequences of any Bill before our Parliament, but they could be the consequences that matter most to some of the most vulnerable people in our society. That is certainly the case with this Bill. Its good intentions are beyond dispute, but they may not be sufficient to mitigate its parlous unintended consequences.
Let me return again to the cause of the liberty and rights of the individual citizen. Such liberty and such rights are not absolute. Law-abiding citizens must submit to certain constraints on their liberty in return for protection from those of a criminal tendency. However, as the noble Baroness said, such personal liberty must not be relinquished lightly. Presumption of innocence unless proven guilty is one such right that I am sure all of us here would hold to be sacrosanct and all but non-negotiable.
I heard what the Minister said about the retention of DNA from those who have not been found guilty of a crime not being a punishment or a presumption of guilt. However, it does not feel that way. I declare an interest. A member of my extended family was arrested. After significant examination and, of course, after the taking of a DNA sample, it was discovered that it was a case of mistaken identity. She holds a strong sense of grievance against the system that retained her DNA. It will take a long time for her and those who supported her during that ordeal to feel any confidence in a system that has left her feeling punished and that a presumption of guilt is now obtaining against her.
The retention of the DNA of people who have been arrested but not convicted is an issue that goes to the heart of our legal system, as has been said often enough. For all sorts of reasons that have been well rehearsed by the Information Commissioner, the European Court of Human Rights and organisations such as Liberty and Justice, the retention of such DNA for as long as six years seriously undermines the presumption of innocence as a fundamental principle of natural justice and it must be looked at again. Many of us will find it difficult to vote for this Bill if that clause stands part of it. I repeat: it would be ironic if Parliament, which legislated to protect the liberty of the citizen, itself became a legislature from which the citizen needed to be protected.
Next, and related to the issue of the retention of DNA and fingerprint evidence, even from those against whom no conviction has been secured, there is clear evidence that black and Asian citizens are far more likely to be arrested than white people and that a greater proportion of those arrests result in a non-conviction than is the case for those not from minority ethnic backgrounds. This means that, for so long as this state of affairs obtains, the DNA profiles of minority ethnic people arrested but not convicted will feature to a disproportionate extent when statistics detailing such retentions are published and analysed. There will be no shortage of those anxious to use such statistics to generate hostility against ethnic minority groups, even though of course—it has been confirmed to us by the Minister today—these data will relate to the non-commitment rather than the commitment of crime. This cannot be the intended consequence of this legislation and it therefore needs to be looked at again. It would indeed be ironic if a Government who have done so much to promote racial equality ended up giving comfort to the agents of racial discrimination.
By no means least, let us look at the impact of this Bill as drafted on children and young people. There is much to welcome here, especially Clause 24, which extends domestic violence protection notices and orders to include,
“the welfare of any person under the age of 18”.
However, when it comes to the clauses on gang-related violence, to which the noble and learned Lord, Lord Lloyd, referred, there is a significant shift towards the criminalisation of minors. That will turn out to be too high a price to pay for tackling the very real problems consequent on the growth of gang culture in our cities and towns—and even across rural Lincolnshire. As with the presumption of innocence, so with the distinction between civil and criminal law: there is something here that sits at the heart of our legal system and, as we have heard from the noble and learned Lord, Lord Lloyd, to blur that distinction, especially in relation to minors, is a very serious matter indeed. The way in which anti-social behaviour orders operate has tended in that direction, and Clause 34 pushes us even further towards minors being exposed to forensic procedures which might be appropriate for adults but which fall well short of what our duty of care to children and young people requires of us. I repeat: it would indeed be ironic if the state, which has a duty to protect children, itself became the threat from which children needed to be protected.
This Bill addresses major concerns relating to crime and disorder in our society and I am alert to the sense of urgency on the part of the Government to see measures enacted that will tackle criminal behaviour that threatens the security and well-being of our citizens. With some amendments along the lines that I have indicated in relation to presumption of innocence and the protection of children and ethnic minority groups, it can become a Bill fit for purpose. However, without such amendments, it will remain flawed and could ultimately prove self-defeating.
My Lords, when I first came to the Bar, I thought of practising in the Chancery Division until a practitioner in it said to me, “Intellect is favoured; audibility is frowned upon”. I hope that this evening I can ask for your Lordships’ patience while I muster such resources in my intellect as I can to outweigh my reduced audibility.
Thus far, victims of terrorism abroad have not received compensation in this country. For those killed or injured by terrorism abroad, there has usually been no insurance—most insurance policies exclude liability for terrorist acts abroad. This means that bereaved families and seriously injured victims in a foreign land suffer severe emotional stress, as well as significant injury on many occasions. However, in this country such victims are compensated. This disparity was, and is, unjust. The Bill seeks to remedy that injustice—at least for the future, its starting date being January this year. It proposes a statutory scheme, the detail of which is to be approved by Parliament. We will then join those countries—seven or eight of them—that already provide such compensation. The French do it by a levy of a euro or two on every travel insurance policy. The Americans just do it out of national duty and honour.
When, three years ago, I introduced to your Lordships’ House a Bill dealing with such compensation, noble Lords thought fit to pass it without opposition or Division. Since that time, we have had the Mumbai disaster, in which our people were either killed or injured. The necessity for this part of the Bill is obvious. The generosity of your Lordships towards me thus far for proposing it and working on this topic is misdirected. It should go to the victims and their families whose energies have been directed at achieving this change in the law; it should go to their lawyers—Jill Greenfield, Yasmin Waljee and the pro bono unit at Lovells—it should include the right honourable Tessa Jowell, whose survival and success as a Minister is matched only by her endurance in having kept this topic on the Cabinet table for the past three years; and it should include the right honourable Ian McCartney, who, following the Bill in this House, took up the struggle and has done noble work. All of us in Parliament have, however, been mere mechanics looking for tools to rectify an injustice. Clauses 47 to 54 of and Schedule 2 to this Bill provide such a tool.
The statutory commencement under Clause 59 reassures me that the noble Baroness, Lady Hamwee, may be wrong in saying there is no provision for introducing this compensation scheme. The power to produce such a scheme will come into law when this Bill becomes law. I cannot imagine any competent Minister running the risk of the political fiasco in which he would find himself if he had failed to enact the scheme and another disaster such as Mumbai occurred.
We have made provision for the future—we have done right by people—but what about the past? By adopting January 2010 as its commencement date in terms of relevant incidents, the Bill excludes the past—Bali in 2002, Turkey and Sharm el-Sheikh in 2005, Mumbai in 2008. One hopes it will stop, but reality suggests it will not. What do we do about the 44 dead and the less than 50 seriously injured from those past incidents? They are conscripts on the front line of terrorism without wanting to be so. Do we give them nothing or recognise our duty to them as our fellow citizens?
I mention this topic because the Minister in the other place thought it appropriate to do so in February when introducing the scheme by amendment to this Bill. The Secretary of State for Justice, Jack Straw, has written to Ian McCartney and me, adopting the Minister’s comments in the Commons about how the scheme might be adapted for the past. What have they suggested? When will we look after those from the past? It will be after the introduction of the scheme for the future. So be it. What will be the nature of the scheme? It will be an ex gratia scheme, which has two consequences. First, an ex gratia scheme represents that which is morally appropriate but for which there is no legal requirement; it is what we ought to do. Secondly, it does not involve any legal concept of retrospectivity; we can dismiss that consideration. What will the scheme provide? For the dead and their families—nothing. For those who were injured but have recovered—nothing. For those who suffered loss of earnings or medical expenses—nothing.
However, a payment—unidentified and undefined—may be made to those who have an ongoing disability. Will Pike, who tied sheets together so that he and his girlfriend could escape the gunfire from the hotel in Mumbai, suffered the break of those sheets—a fall to the ground and he sits in that wheelchair at the Bar of this House, permanently paralysed. We give him something, but not what he deserves.
If we asked the country what they thought of this, they would say, “Pay people involved in past incidents the same as you will in the future. They are small in number, the incidents are clearly defined and the cost might be a few million pounds. It’s the right thing to do”. Yet, in the outline scheme I have just given you, the full might of the machinery of the state has ground down to make sure that the victims get a few hundred thousand—maybe. Is that the right thing to do?
At the end of this particular Bill, at the end of this Parliament, I invite the Government of the day and the one who follow them to do the following: first, make no decision about the past until after the election; secondly, review this issue through the new Minister, whoever that might be; thirdly, listen to representations and recommendations by the victims and their families; and fourthly, listen to public opinion.
The Minister used words eloquently in describing the value of the scheme for the future, saying that it represented a “tangible expression of sympathy”; I agree. It represents help to those who need to rebuild their lives; I agree. Let us do it for the past as well as for the future. For once, let us do the right thing.
My Lords, I welcome the opportunity to speak briefly on this important Bill and in doing so I declare an interest as honorary president of both the Gun Trade Association and the British Shooting Sports Council. I am also a member of the Countryside Alliance. You will be delighted to hear that I intend to restrict my comments to matters in this Bill that I know about—those concerning air weapons.
I and the organisations with which I am connected have always supported the aim of Her Majesty’s Government to address the misuse of firearms, including air weapons. However, I am very much of the opinion that legislation should target criminal and malicious misuse, rather than those members of society who are both law-abiding and responsible. The users of legally held guns for sporting, target or vermin-control purposes are widely considered to be among the most law-abiding and responsible members of the community.
The Anti-social Behaviour Act 2003 made it an offence to have an airgun in a public place without lawful authority or reasonable excuse. The Violent Crime Reduction Act 2006 made obligatory the sale of airguns, by way of trade or business, through a registered firearms dealer, and raised the age for the purchase and acquisition of such an airgun to 18 years of age. Both Acts have had an influence on the reduction in offences involving airguns.
It is a well known fact that the very considerable majority of airgun users are responsible adults who already take reasonable precautions to prevent any person under the age of 18 having the weapon with them. This Bill will reinforce the legislation already in place and should, if properly administered, not hamper the legitimate user of an airgun.
So, while giving the Bill a cautious welcome, I have only one criticism. Should the Government not have waited a while longer to assess further the beneficial effects of the two previous Acts before proceeding with the air weapon part of this Bill? It seems to me that it should be rather unnecessary and produce yet more red tape for the gun industry to bear.
My Lords, this is a very strange Bill which appears to have lots of incidental measures in it and my contribution to Second Reading will be fairly brief. I intend to restrict my remarks to those about stop and search, but first I must declare my interest. I chaired a police authority for a number of years and dealt with complaints against police officers. I was also a deputy chair of the Association of Police Authorities for a number of years and this august body was the first to publish a really excellent document to be used by the general public, explaining how stop and search worked. It was widely distributed and very well received throughout the country.
In every debate on a police Bill in which we have discussed this matter, and there have been many police Bills over the years, I have made clear our view on these Benches that the police must carry out these duties proportionately and reasonably. We know that since this legislation was enacted, and particularly under the terrorism legislation, black people have been almost eight times more likely, and Asian people twice as likely, to have been stopped than have white people, as the right reverend Prelate the Bishop of Lincoln acknowledged. We also know how this has affected many young people—they have become distrustful of the police—and, once lost, that trust is incredibly difficult to regain. Minority communities will think twice about helping the police. They will not give crucial information to help clear up crime, and they will decline to appear as witnesses to secure convictions. It is so important for the police to deal fairly and to be seen to deal fairly with all our communities, whatever their ethnicity, but particularly when such disproportionality is evident, as my noble friend Lady Hamwee reminded us.
This Bill does not address the problems of stop and search under Sections 44 and 45 of the Terrorism Act 2000. Will the Minister address this in his response? He will know that the European Court of Human Rights has concerns about the disproportionate use of this legislation. Why have the Government not taken the opportunity in this Bill to address those concerns? It would have been an opportune time to tackle the ECHR’s unease about these matters. Why was there so little consultation on reducing the burden of bureaucracy, welcome though such consultation is? Of course we would all support a less bureaucratic process, but that must not be at the expense of losing valuable and often crucial intelligence from the minority communities.
The original form of these stops and searches was ridiculously long and took ages to complete. I remember being stopped in a car that was bringing me back to Westminster after a speaking engagement. The driver was pulled over and questioned by not just one, not just two, but four police officers as I sat in the back of the car wondering what was happening. The whole thing took about 15 minutes. The car was a limousine, and it just so happened that the driver was black. No doubt the police had a good reason to stop him, but when I asked them they told me that it was a routine stop and that I should get back in the car. The driver, having been allowed to continue our journey, told me that this happened all the time to him, especially when he drove that car. I wonder why.
The form of stops and searches that is now envisaged appears to be going in the other direction. Under these proposals, for instance, they will not capture information of age and gender, which might distort proper monitoring and give misleading impressions about how this power is being used. We might need this information to monitor effectively other key diversity information. This may well hinder our ability to check whether stop-and-search powers are being used, for instance, to target particular groups unfairly. As Liberty says in its briefing on the Bill:
“It is essential that a reduction in red tape translates into improved community engagement. Time saved by the removal of bureaucratic measures should be used to improve the way in which police interact with the people they stop and search (such as clearly explaining why the person has been stopped) and not use counterproductively—for example to carry out even more stops and searches”.
In its article on stop and search, the Police Superintendents’ Association of England and Wales tells us of the work that is being undertaken by the National Policing Improvement Agency—the NPIA—to develop a diagnostic tool that is based on the knowledge that the vast majority of those in all communities will wish to support the use of the power to stop and search if the forces in this country can demonstrate their effectiveness in tackling criminal activity. This diagnostic tool is called Next Steps, and it has been designed,
“to improve community confidence in a force’s use of The Police and Criminal Evidence Act 1984 (PACE) Stop and Search powers. It looks at the building blocks of the successful use of the power through accurate data, effective use of intelligence, good quality encounters, clearer definition of ‘reasonable suspicion’ and effective scrutiny. The work, which will be piloted in three forces later this year, also includes an operation to focus the use of Stop and Search as a Neighbourhood Policing priority”.
Will the Minister assure us that the pilot forces will have sufficient resources to undertake this interesting and important project?
Finally, if we get this wrong, it could have a great impact on confidence in this area. Going from the ridiculously long form to one that asks, well, not much actually, is a step too far, and I urge the Minister to look at the problems that I have mentioned and to consider whether it might be sensible to put in slightly more pertinent information to enable these powers to be scrutinised better.
My Lords, my contribution to this debate will be short. I do not plan make a typical Second Reading speech, considering the broad span of the Bill, but in view of the time constraints and special circumstances of this Second Reading, I propose to focus exclusively on Clauses 42 to 44.
I speak as a former chairman of the regulator for the security industry, the Security Industry Authority, at its inception some 10 years ago. Despite having held positions on several regulatory authorities, I generally take the view that this country is excessively regulated. I suppose that anyone who works in the National Health Service these days, with its 52 regulators, is likely to take that view. My instinct, therefore, is generally to oppose any extension of regulation. However, each case has to be considered on its merits. The case for extending the regulatory framework to include wheel clamping businesses that work on private land is overwhelming. Individuals who undertake this work on private land must have a licence, but unscrupulous operators can avoid the regulatory controls simply by turning themselves into businesses, and it seems that they have no great problem doing just that.
When I was chairman of the Security Industry Authority, I received pleas from across the country on this issue from members of the public who had suffered at the hands of these unscrupulous wheel clampers on private land. The typical experience was of a pensioner or a housewife who had for years parked on a little piece of land. One day, they came back to find that their car had been clamped, or worse still towed away, and they had no idea why. They had had no idea that they could not park on that particular piece of land. The instruction on their vehicle tended simply to give a mobile phone number, and they had to hunt around this piece of land just to find information.
Wheel clamping companies are particularly careful to hide their identities. The only way to retrieve your car, once you have tracked down the information and contacted the mobile phone number, is to pay a fine. Even 10 years on, I remember that the fine could be £500 or more. If the poor individual finds it difficult to pay that fine and does not pay it over a period of perhaps two weeks, they find that the sum increases—and so it goes on. If the vehicle owner denies that he has parked on a private piece of land, he has no complaints or appeals system to which to turn; they are completely helpless.
How could this come about? Outside the regulatory system, there is no specification about signage. You can have a little piece of paper behind a tree, and no one will interfere. That really is not uncommon. Again, there should be a land line; you should be able to know with whom you are dealing, but this simply does not happen. Under regulation, a code of practice would specify the size and positioning of signs. That is a No. 1 priority. If people know that they are doing something that they should not be doing, they have a choice, but if they do not know, they certainly have problems.
The provision in this Bill for fines to be capped to a reasonable sum is also important, as is the stipulation of a time limit before which you really cannot just towusb away a vehicle. I was told about people who would hide behind a wall or literally behind a tree, wait for the poor person to park and drift off, and immediately out they would come and whip the car away; and again there are no controls. I strongly support the complaints-handling provision and the harsh penalties for any business operating without a business licence.
This clause would be self-financing. It would bring great relief and prevent considerable stress and financial hardship to innocent and often vulnerable individuals. I do not believe that there are any hidden consequences. Landowners would continue to be able to prevent unwanted parking on their land, and they are certainly absolutely entitled to do that. I hope that noble Lords on all sides of the House will be perfectly happy to see this small, but in my view important, set of clauses pass into law.
My Lords, crime and security provisions go to the fundamental duty of any state to protect its citizens and to keep them safe. In my short address this evening, I intend to concentrate on three main areas: the retention of DNA, stop and search measures and, briefly, gang injunctions.
The development of genetic fingerprints or DNA is probably the most important investigative tool in the fight against crime since fingerprints were developed, as the Minister mentioned. In my view, the DNA database exists as a tool for justice. It has resulted in many violent crimes, rapes and burglaries, going back many years, being detected and their perpetrators prevented from preying on innocent victims in the future. It provides the police with an average of about 3,300 DNA matches per month. Between April 1998 and March 2009 there have been 304,000 detections in which DNA was an important factor. In burglaries, where DNA was available it more than doubled the detection rate from 17 per cent to 38 per cent in 2006-07. These numbers are important and no right-thinking citizen can deny their importance in any debate that we have on crime.
That alone would justify such a database in a modern, progressive society. However, it does more—it actually serves justice by eliminating the innocent as suspects, which is why I describe it as a tool for justice, and not just for the prosecution. Of course, the contentious issue is whether, if ever, DNA samples should be kept on people who have not been convicted. Let me make it clear that when we are talking about DNA samples—I think the Minister made this point—we are not talking about keeping spots of blood, hair or tissue, but about information on a barcode, rather like a supermarket price label. The information is of no use to anyone, other than to match it against another sample found at the scene of a crime or at a fatal air or train crash and the like.
I know that I am certainly a minority, if not a total exception, in this House and I will nail my colours to the mast. I would retain the DNA of every child born in this country. It sounds fanciful, and probably is in the light of the decision of the European Court of Human Rights, but it is not as difficult as it sounds. I am told that DNA samples are now routinely taken from all babies to check for genetic diseases and medical conditions, and I imagine that it would be relatively easy to process and transfer the data, but perhaps I am being too adventurous. As members of the public continue to tell me when I raise this at meetings and in discussions, “What has an innocent person got to fear?” Perhaps those opposing the extension or even proposing a reduction in the DNA register could explain that to the House.
For example, if we had not retained any data from unconvicted people in 2008-09, the police would have lost some 10 per cent of matches for rape and homicide cases, a total of 79 of these serious cases. This is extremely important, not just for the victims and their friends and families, but for society as a whole because they continue to reoffend. I speak as a student of victims, if you like, with 35 years of policing—dealing with the victims of crime—and I know how important it is for them to get closure by having their day in court. It is no good noble Lords criticising police performance if we do not give them the tools to do the job on our behalf.
It was mentioned earlier that Scotland has a more restricted retention policy than England, but in my experience chief officers there are certainly in favour of moving to the English model. As the ACPO lead on DNA and chief constable of the West Midlands said in September last year:
“There are 40,000 crimes matched every year; it is helping us to keep safe. Reducing the numbers on the database will tip the balance towards making people less safe”.
Is that what your Lordships really want?
I fully support retaining DNA lawfully in the possession of the police for a proportionate amount of time permissible under the law, and I think that is what the Minister is proposing. It also makes a lot of sense to allow the police retrospectively to collect DNA samples from serious, violent and sexual offenders returning to the UK following convictions overseas. It is a simple proposition—the greater the database, the greater chance to do justice for victims of serious crime. We should support the police in their relentless battle to reduce the number of these serious offences.
I will turn briefly to the bureaucracy involved in stop and search. In my view, as a working policeman with more than 30 years’ experience, one of the best deterrents to carrying illicit articles, such as weapons, drugs or explosives, is the fear of being stopped and searched by the police. It is fairly obvious; it works at airports and at football matches, and we do not use it sufficiently. On the streets, we tend to burden police officers with mountains of paperwork. The noble Baroness, Lady Harris, who is not in her place, referred to that. Therefore, I welcome the provisions in the Bill to reduce the time spent on this task. A record of the stop and search will still have to be kept, quite rightly, and this will still include details such as ethnicity. It is anticipated that the reduction in time per encounter would be about 12 minutes per stop and search, or about 200,000 hours per year, which is quite a saving. This has to be good for the police and for the public of this country.
In concluding, I make a plea for the application of common sense in supporting citizens who intervene to prevent anti-social behaviour and crime. We hear too often of decent, law-abiding people confronting yobbish behaviour in the streets and on public transport, who find themselves hauled into police stations to be questioned or even charged with over-stepping the mark. We need the police, together with the crown prosecutors, to exercise common sense and discretion more. However, if the police do not pass the case on to the crown prosecutors in the first place, then that would be the end of the matter.
I will give a brief example because it touches on what I have talked about on stop and search. Two weeks ago I was travelling on a bus with my wife and I had occasion to challenge a youth in a hood, who had his feet on the seat in front of him, which was where I was sitting. I remonstrated with him and an altercation took place, which resulted in him saying at the end of it, “I have a good mind to cut you up”. That caused me to suspect that he might be carrying a knife. The youth continued to mutter and I was very cautious, obviously, of taking any further action. Two things prevented me from taking the matter further: one was the presence of my wife, who, I am sure, would have severely reprimanded me; and the second, which is just as important, was that if the situation became physical and the youth was not armed but got injured, I would be the one in the dock. My point is that I should have had full confidence in the judicial system to support me doing the right thing in difficult circumstances. It is a sad reflection that I did not. Making it easier for the police to stop and search in a fair and proportionate manner, which is important, will reduce the chances of people carrying offensive weapons on public transport and on the streets.
We have recently seen in London one or two gang-related stabbings. I therefore fully support the provisions in the Bill to allow injunctions to be taken out against 14 to 17 year-olds. I spent some time training with the FBI and I have seen the use of injunctions in the USA reduce gang culture and gang-related violence. I look forward to seeing how the decision to pilot the introduction of this measure works. Anything which can be done to make the streets of Britain safer has to be a vote winner. I support these provisions in the Bill.
My Lords, we have yet another Bill dealing with policing, crime, security and the judicial process. With that in mind, I was not surprised to read a letter in the Times this morning written by Paul Mendelle QC, the chairman of the Criminal Bar Association. He was talking about the problems of young barristers but he used a phrase which I thought was particularly apposite when he referred to one bloated Bill after another going through the judicial process. He was not, I hasten to add, talking about the matters which concern us today but touched on the generality of more and more legislation coming before us.
I have only four years’ experience of speaking from the Cross Benches but I wonder why a Bill of this gravity has been introduced with only five working days of Parliament left. If, as many of us expect, the general election is called on 6 May, the dissolution of Parliament will take place and leave us very little time to consider this matter. Is it to be consigned to the wash-up? I know enough about a wash-up now to know that it is some sort of quasi-judicial mincing machine which disposes of Bills which have run out of time. If I may say so, and not at all in jest, it would be wholly inappropriate for matters contained in this Bill—dealing, as it does, with issues of criminality, freedoms, rights and so on—to be consigned to that process.
Having said that, there is much to applaud in principle within the Bill, as others have mentioned. I shall go quickly through some of the measures because other noble Lords have taken more time over their expositions and have gone into more detail.
On Clause 1, which deals with stop and search, the Explanatory Notes state that the new proposals will cut 15 minutes off the current procedure. Those 15 minutes will give you a rough idea of the amount of bureaucracy loaded on to the police in generality, but particularly in this instance. It is stated that this will save £4.2 million per annum on the police budget. I am not sure where the maths come from—I have not worked it out for myself—but clearly something needs to be done to remove that bureaucracy and to reel us back, if you like, from its present levels. Some might say that the Bill does not go far enough, but we are talking, in all sincerity and seriousness, about maintaining a balance and proportionality between law enforcement and stop and search on the one hand, and the exercise of reasonable power on the other. As the noble Baroness, Lady Harris of Richmond, has pointed out—I support very much of what she said—it is a serious matter but it should not become bogged down with unnecessary bureaucracy.
As to Clause 34 and the following clauses on gang injunctions, there is a big problem on the streets with gangs. In the past seven days we have seen reported widely in the national press two devastatingly sad occasions of teenagers being stabbed to death by gangs on the streets of London. It goes on elsewhere, of course, throughout the year. I suspect that the devil is in the detail in these clauses but something needs to be done. We should concern ourselves with a reasonable amount of time within your Lordships’ House to look at that problem.
Clauses 40 and 41 require families to take responsibility for the anti-social behaviour of their children. The noble and learned Lord, Lord Lloyd of Berwick, has spoken of his fears about invoking injunctions and bringing that into the criminal law—I agree with his fears on that—but anti-social behaviour by children and families who take no notice of what their children are doing at any hour of the day or night is another matter that we need to consider.
Clause 42 seeks to amend the Private Security Industry Act 2001. The noble Baroness, Lady Meacher, referred to the racket which goes on among licensed wheel-clamping outfits and we are now seeking to encompass businesses within the legal process. As the Security Industry Authority has been in place for seven or eight years already, I wonder why we are only now turning to encompass wheel-clamping businesses rather than the people concerned. Why has it taken so long to get to grips with this? That we must get to grips with it there is no doubt.
Clause 45, which seeks to prevent the use of unauthorised mobile phones in prisons, has already been referred to. Of course we have got to stop leaders of criminal gangs continuing to run their businesses from inside prison while they are serving current sentences—as many of them do—and arranging for drug drops within prison and so on. It has been a matter of concern for those in the criminal justice system for a very long time.
In the main, I wish to speak about the use of DNA. As we already know, this has created a great deal of interest and comment. I declare two interests at this point. First, as some of your Lordships will know, I served in every rank in the Police Service, from constable through to Inspector of Constabulary, for over 30 years. In referring to DNA, I should declare that I am the non-executive chairman of two separate companies which provide laboratory analysis services for exhibits taken from the scene of crime, not only for the police and other law enforcing agencies but also for the defence, both in this country and abroad. It is confidently expected that those two companies will merge very shortly and I may well be the chairman of the newly merged entity. However, I should point out that those companies are not, and will not be, involved in the maintenance of the databases, the issue which concerns us today. I do not have an interest in the mechanics of data collection and recording.
Reference has been made to fingerprints. From the days of Patrick Henry—a colonial police officer in the Middle East and Far East at the end of the 19th century who invented the fingerprint system—fingerprints have been accepted as being 100 per cent accurate. DNA, with its short history of forensic use, is also now regarded as being 100 per cent accurate. DNA is a much more powerful tool than fingerprints for at least two reasons. First, there has to be 16 points of similarity with the fingerprints of an accused person before the print in question can be used in court. It is very difficult to find 16 points of similarity because usually fingerprints are smudged or do not have 16 points present.
Compare that to DNA, where the sophistication of the processes has gone on exponentially, particularly in the past five or six years, to a point where a single flake of dandruff, a single hair, a dot of body fluid not much bigger than a pinhead, saliva on a cigarette butt, and other examples, will provide a 100 per cent DNA match—a powerful tool indeed. It also has within it, and can provide, genetic history. For years fingerprints in the possession of the police were only kept where a conviction had ensued. When DNA came onto the scene, the system quickly eased to a position of “Keep it all”. That is what we are considering today, particularly the case of S and Marper v United Kingdom—the European Court of Human Rights case in 2008 which was ruled to be incompatible with the right to respect for private life, contrary to Article 8 of the European Convention on Human Rights. As we already know, the case was particularly concerned with the retention of DNA and fingerprints from persons not convicted of any offence—in other words, from innocent people, arrested on suspicion but not convicted. The Minister talked about the case of Thompson and I understand what he was saying. Two very serious sexual offences were cleared up years later by somebody who was arrested and then cautioned. The case was made by the Minister that a caution does not rate as a conviction. That is a hair to split, if I may put it in those terms. Since the person has already admitted the offence, I see no reason why cautions should not provide DNA for the database.
I take issue with the Government’s response to the findings of the European Court of Human Rights. I, too, believe that the retention of DNA for up to six years of those arrested but not convicted is wholly disproportionate. It raises fundamental questions of privacy and individual rights and freedoms set against securing the safety of the state and of individuals. That is a very fine balance that should not be approached timorously but neither should it be approached in an overly zealous manner. As we have heard, the Home Office and at least some of the police argue for change. We have been told by the noble Baroness, Lady Hamwee, that the Police Federation has exercised a note of caution on this but ACPO is probably pretty full-bodied in its support for the Home Office on this Bill and also for the retrospective collection of DNA in cases of serious violent and sexual assault. I would be interested in the position of the CPS on this. I know it is not exactly within its frame of reference since it considers the evidence put before it by the police, but I would like to know what it thinks about this. Maybe in due course we shall know.
In terms of balance, I acknowledge the desire of those who are in the law-enforcing machine to extend powers. You might say in analogous terms that any craftsman will always accept the offer of a sharper tool if it is made available to him. Powerful arguments in favour of the Bill are mounted by very worthy individuals. I also reflect on the analogy of electricians who deal more with electricity as their skills increase. And as their skills increase, so they seem to gain a greater respect for what it is they are dealing with—the power of the electric current. Anyone involved in the exercise of power and authority, of which I have had my share, should be very conscious of its proper use and not misuse it. I make the plea for a proper balance against the background of what I perceive to be a steady increase in the intervention of the state into human relations of all kinds. The figures are variable. I am told by some that we have created 3,000 new criminal offences in the past 10 or 12 years. Some put the figure as high as 4,000. I am not sure where the arithmetic takes us, but certainly there are a lot more ways of getting into trouble than there were a few years ago.
We have had constant attempts to erode a whole range of fundamental rights. One well remembers the abortive attempt to introduce a limit of 90 days for terrorists to be held without charge. A 56-day limit was talked about. When I had the honour to table the amendment against an extension to 42 days, your Lordships voted overwhelmingly to hold the line at 28 days. Another example against the canvas that we are debating here today is the quite enormous step change that DNA has provided. It is a very powerful tool indeed in the forensic armoury. I, too, as others have mentioned, would be quite happy to consider the Scottish system as a fallback measure. I will not go into that in detail. It has been laid out before your Lordships already.
In short, I have heard nothing to date to cause me to support the proposals concerning the retention of DNA for those who are yet to be proved guilty. I remain totally unconvinced that the gains outweigh the disbenefits, and were there to be a vote today, I would vote against the proposals to retain DNA where no conviction ensues, and I would need a great deal of persuasion to support samples being taken retrospectively.
My Lords, as the noble and learned Lord, Lord Lloyd of Berwick, has said, this Second Reading debate, coming when it does, gives us an opportunity to reflect, even though it may not do much else. We come towards the conclusion of a Parliament understandably preoccupied with security. The security of the British people is a fundamental human right, for which all of us in both Houses have a primary responsibility. We should, therefore, take this opportunity firmly to underline our appreciation of the tireless and dedicated work on our behalf by Ministers, officials, the police, the armed services, the security services, the UK Border Authority, and all those authorities which carry on our behalf the burden of constant vigilance at local, national and international levels. Theirs is an exacting task.
Of course the effectiveness of these agencies and those who serve in them is related to their accountability. It is also deeply related to two other crucial principles. First, just as successful policy-making depends on working with the community and not simply controlling it, so the containment of terrorism and related extremism depends on winning hearts and minds and marginalising the irreconcilable fanatics. This can lead to difficult but crucial decisions by Parliament, like that on which this House so firmly spoke to resist the proposal, which came to be seen not just as wrong on human rights grounds but as counterproductive, to extend the permissible period of detention without charge to 42 days.
As one operational policeman whose role was central to work with the Islamic community put it to me at the time, our priority must be to win the confidence of ethnic communities and have them on our side, not to provoke and alienate them. There has to be a deeply rooted realisation among all involved that human rights are an absolutely critical cornerstone of our security and not just a nice idealistic concept about how society might be. It is no exaggeration to emphasise that, where human rights are central to government, administration and front-line security work, the opportunities for the extremist recruiters to get to work will always be smaller. Where human rights are not central, are abused or have lapsed, the opportunities are greatest. It is essential that those of us with legislative responsibilities and with responsibilities for the calling-to-account of the authorities never forget this. We must always support strong, enlightened leadership in the agencies to which I have referred in making a reality of this. Ever to condone, let alone excuse, abuse of human rights or failure constantly to stand by them is not only to undermine committed leadership but to aid and abet those who seek to undermine our society and to play into the hands of those who threaten us. It is literally treacherous.
This weekend, we have had a grim example. The wicked, cruel and indiscriminate bombings on the Moscow underground must be condemned without reservation. But so should the tyranny, disappearances, targeted assassinations, house-burnings, intimidation and torture by the ruthless Kadyrov regime in Chechnya. Apart from being morally reprehensible, those abuses have played directly into the hands of extremist terrorist recruiters. If we take seriously and in a global context our own security here in the United Kingdom, we should leave our Russian friends in no doubt about that.
Justice is central to our human rights. That is the principle; Acts and conventions are about implementation. What, through centuries of hard and sometimes bitter struggle, has emerged as central to our concept of quality of justice and its administration? As a layman, perhaps I may put it as I see it. Absolutes must surely include: its transparency—justice being seen to be done; habeas corpus—not just as a restraint on administration but as essential to ensuring transparency and winning hearts and minds; presumption of innocence—as a manifestation of respect for all individuals and their integrity; the principle of no retrospective legislation—people must know the rules and laws of the society in which they are living; total rejection in practice, not simply in sincere rhetoric, of physical coercion and torture in all their forms; and, underlying everything, the crucial principle of proportionality in everything that is done, from investigation to sentencing.
In the inextricably interrelated sphere of penal policy, the key imperatives that should govern all that is done seem to me to be decency and rehabilitation. Without those disciplines, we have little prospect of winning the battle for responsible citizenship and building a sustainable, secure society. We also add to our economic woes by maximising the likelihood of reoffending. Just as we should invariably deny the extremists the satisfaction of seeing us provoked into dismantling what makes our society worth having, so we should also never allow the cynical, calculating or sophisticated criminal to drive us into undermining those invaluable principles.
After the general election, and in one way or another, Parliament will have to give careful consideration to all this. Do we or do we not stand by the principles to which I have referred? How far are they endangered by erosion as a result of tactical expediency? Is it not exactly when the provocation is greatest that our determination to stand firm on what matters must be the most resolute?
Together with the outstanding work of its clerks and advisers, the Joint Committee on Human Rights, on which I was glad to serve for a time, has proved an indispensible praetorian guard of the quality of justice. Under its first two impressive chairmen—the very first was my noble friend Lady Corston, who with great wisdom set it on its influential course—the committee’s reports have provided when necessary a constantly helpful discipline for us in our deliberations. Their work on the Bill before us is no exception. My noble friend referred to a letter in the Library, but I hope that he has had time to study the committee’s 12th report, published on 2 March. The committee positively commends some important provisions now in the Bill, but it still argues persuasively for changes in several respects. When he comes to wind up, I hope that my noble friend will be able to deal with at least its salient observations, covering the retention of DNA profiles, the reporting requirements on stop-and-search forms, the inappropriate use of stop-and-search powers in relation to children, and the proposed domestic violence protection notices.
On the retention of DNA samples and profiles, the committee commends in its 2 March report the Government’s acceptance that the breach of the European Convention identified by the Grand Chamber of the European Court of Human Rights in the Marper case must be removed speedily and welcomes the Government’s decision to provide for a full parliamentary debate. This is a serious matter which deserves careful parliamentary scrutiny. In its conclusion, the Grand Chamber had of course found that the blanket retention of DNA samples and profiles of innocent individuals and children on the National DNA Database was disproportionate and in breach of the right to respect for private life guaranteed by Article 8 of the European Convention.
The Joint Committee remains concerned that the Government are on record as wanting to “push the boundary”—the noble Baroness, Lady Hamwee, referred to this—on the Marper judgment to protect the public. In its lifetime, the committee has repeatedly emphasised the responsibility of the Government to protect the public, but it nevertheless underlines that the European Court of Human Rights itself has taken full account of this in arriving at its view of the proportionality of interference with Article 8 rights. After reviewing the matter carefully in its report, the committee concludes:
“So far, the Government has not provided the evidence we require to be satisfied that the proposals in the Bill are proportionate to the interference with individual rights”.
What more my noble friend has to say on this in his wind-up speech will be important for future deliberations on the Bill. So also will be his response to the committee’s recommendations on children, including:
“In particular, we recommend that the Government provide justification for its proposed retention periods and publish its analysis of the compatibility of the proposals with the UN Convention on the Rights of the Child”.
It is surely significant that the Select Committee on the Constitution specifically goes out of its way to endorse what the Joint Committee on Human Rights has said. Here I digress for a moment to respond to the interesting speech of my noble friend Lord Mackenzie of Framwellgate, who I am sorry is not in his place. He at least had the honesty to put forward a completely radical and different approach. If we are to debate the matter in the future, we cannot dismiss out of hand the concept of DNA records which cover every citizen, but the point is that they do not do so at the moment. There is therefore a divide between those of us who enjoy absolutely the presumption of innocence, with all the reservations to which I referred earlier, and those who have a conditional presumption, because they are on a record on which no one else has their name.
In introducing the Bill, my noble friend rightly stressed the paradox of the gap between reality and perception—the right reverend Prelate the Bishop of Lincoln underlined it. It is extraordinary that it is not more widely understood how crime rates have fallen. However, whatever the need for and the merits of the Bill, the greatest threats to our society probably lie in the realms of the flaws and materialist preoccupations of our financial system, in natural and man-made disasters and, whatever the stupidities of occasional academic arrogance, in the continuing challenge of climate change. There is an interesting parallel between the vast damage and suffering that can be wrought by a small number of dedicated terrorist extremists and that which can be caused by a relatively small number of greedy financial barons. If we are to succeed in winning against terrorism and crime, we need a recommitment to the values of social responsibility and mutuality throughout our community at all levels.
There is a deep contradiction in a society in which getting to the top of the pile is too often portrayed as the name of the game, irrespective of how it is done, and in which we then tell those who are trampled on or excluded—the casualties at the bottom of the pile—that society’s well being depends on them, and then concentrate almost exclusively our legislation on how they should behave. The strength and transparent credibility is just not there and credibility is essential to the success of our justice system.
My Lords, this Bill covers many areas of importance that have a significant impact on our civil liberties and our fundamental human rights. These are the very principles on which our democracy was founded. I hope that this legislation will make a contribution to tackling the injustices in our society that it highlights.
Clause 1 relates to the amount of information that officers would be required to record under stop and search powers. I commend the Government for proposing that a number of recording requirements should now be either removed or significantly reduced. Some officers have made reference to a target culture that is prevalent in their everyday duties, so I am grateful that this has been given due consideration. I support measures to reduce bureaucracy and therefore hope that this section significantly reduces the length of the stop and search documentation.
Staffordshire Police successfully reduced the length of administrative time spent on recording information. There is no reason why this good practice cannot be implemented in other police authorities. I am concerned at the stop and search activities undertaken by the police for purposes that are not related to terrorism. I have previously spoken about this issue in your Lordships’ House. Since 1997-8, black people have been almost eight times more likely to be stopped and Asian people are twice as likely to be stopped by the police in comparison with their white counterparts. This situation must be addressed as a matter of urgency.
It is important for the police to retain the respect and confidence of minority groups, which can prove vital in solving crimes and gathering intelligence. Sections 44 and 45 of the Terrorism Act 2000 authorise police to stop and search individuals in the absence of reasonable suspicion. I fear that this situation could have disastrous consequences in all our communities. In fact, only 0.6 per cent of the people stopped under Section 44 powers in the second quarter of 2008 were subsequently arrested. The European Court of Human Rights has also raised concerns about the use of stop and search powers under Sections 44 and 45, stating that they should be used in a proportionate manner.
Section 60 of the Criminal Justice and Public Order Act 1994 also does not require police officers to have reasonable suspicion about an individual before they carry out a stop and search operation. The latest figures suggest that 25,294 searches under current legislation were carried out last year in the London Borough of Newham. I was in the area last Saturday and addressed a gathering where there were people of Sri Lankan and Bangladeshi extraction and I spoke to some of them individually. Newham also happens to have one of the largest percentages of ethnic minorities in the country. The activities of the police may send a poor message and possibly breed resentment among the ethnic minorities. Therefore, powers under Sections 44 and 45 of the Terrorism Act and Section 60 of the Criminal Justice and Public Order Act 1994 need further examination and reappraisal.
Clause 14 concerns the retention and use of DNA samples. DNA technology is of high importance in detecting and preventing crime. Making use of this system is a question of finding the right balance between applying the law and not compromising the dignity and rights of individuals. I do not dispute the retention of the DNA of guilty individuals. However, I am concerned about the DNA of innocent people. A transparent and consistent approach to the removal of innocent people’s DNA from the database would be most welcome. The current system may cause concern among certain members of our society. For example, 77 per cent of people on the DNA database are black youths, which is disproportionate to the number of convictions brought against this group.
Some police forces refuse to remove DNA samples even when a person is declared innocent once a case has been closed. Research has revealed that only 22 per cent of requests for the removal of DNA samples are granted. Certain police forces agree with the majority of requests, but a large proportion do not. There needs to be consistency and clarity among the processes undertaken in all 43 forces, as the current figures give rise to a postcode lottery. By October 2009, over 5 million DNA samples were on the database. This situation is unnecessary and has rightly drawn criticism from many circles. There is evidence to suggest that less than 1 per cent of crimes are solved due to the DNA database. I would be grateful if the Minister could explain to your Lordships’ House why the DNA database has continued to increase while the number of crimes for which a DNA match is available has continued to decline.
The Bill requires all DNA samples to be destroyed after six years. I would like to see the Scottish system adopted, whereby the DNA of innocent people is not retained at all. I am encouraged by the ruling by the European Court of Human Rights that it is illegal to store one’s DNA indefinitely. The court stated that our DNA database has,
“a blanket and indiscriminate nature”.
That is a criticism of the present system by an institution of great stature. The court also ruled in 2008 that the retention of DNA samples belonging to individuals who had not been convicted of any crime was unlawful and unnecessary in a democratic society.
I welcome Clause 24 and subsequent clauses, as they introduce measures to tackle domestic violence and reinforce the protection of victims after a suspected offence. The subject of domestic violence is something on which I feel strongly and about which I have previously spoken in your Lordships’ House. The intentions of the Government are highly admirable on this issue, but I am concerned as to how domestic violence protection notices and orders will work in practice. It is important that they are not used as substitutes for pursuing proper sanctions in the courts against perpetrators of domestic violence. More police officers should be encouraged to prosecute perpetrators of domestic violence, even in the absence of the victims’ testimony, by reasonable use of circumstantial or medical evidence relating to the offence. Research suggests that approximately 3 million British women are victims of domestic abuse each year. Some 14 per cent of violent offences involve domestic violence. The unfortunate reality is that the actual figure is inevitably higher, as a number of victims do not come forward to report such abuses.
The physical and psychological trauma suffered as a result of domestic violence should be assessed immediately after victims are identified. May I ask the Minister what extra assistance will be given to children who have witnessed domestic abuse? Domestic violence is prevalent in all communities and all classes of people. It is an abhorrent practice, which causes untold harm to the victims and their families.
At this juncture I should like to declare an interest. I am the chairman of an insurance broking organisation that has provided specialist insurance to the security industry over many years. My company has acted as insurance brokers to the British Security Industry Association, as well as to the International Professional Security Association. The security industry performs a valuable service and is now very much part of the extended police family.
I have always believed in maintaining and strengthening standards in the security industry and have applied strict criteria to the acceptance of security companies and personnel under our insurance scheme. We welcomed the enactment of the Private Security Industry Act 2001 and the formation of the Security Industry Authority. I welcome Clauses 42 and 43, which amend and extend the Private Security Industry Act 2001 and will introduce a licence requirement for businesses carrying out vehicle immobilisation or restriction and removal of vehicles.
Clause 43 proposes that the approved contractors scheme under Section 15 of the 2001 Act be extended to those persons who carry out in-house security activities. Certain organisations have in-house security arrangements and this proposal will ensure parity with companies providing security under contract. I welcome the establishment of an independent tribunal, or adjudication system, for release fees applied by wheel-clamping companies, as some motorists may feel that they have been badly treated in this regard. At present, the approved contractors scheme, which is supervised and managed by the Security Industry Authority, is voluntary, but I would like to see this scheme become mandatory for all security companies, as that will further regulate the security industry.
I support Clause 47 and subsequent clauses relating to compensation for victims of overseas terrorism. I spoke in your Lordships’ House when the noble Lord, Lord Brennan, introduced his Bill. I see that he is not in his place, but I appreciate his perseverance.
We must defend the civil liberties and values that are vital to our society. I am particularly concerned about the collection of DNA samples and the use of stop and search powers in relation to ethnic minorities. The current state of affairs does not bode well for community cohesion. The situation in Newham shows that the facts speak for themselves. It is important to ensure that no group feels as though it is the constant target of discrimination.
Although I welcome any provisions to address domestic violence, I feel that the Bill must gain more clarity. I fear that the Bill is not adequately far-reaching in its present state to have a pivotal impact. I sincerely hope that it will be strengthened in Committee.
My Lords, since Parliament is soon to be dissolved, the Bill will not provide us with many days of sitting here, sometimes until late at night, pressing the Minister on the various clauses and engaging in spirited debate with him. That has been a most enjoyable activity, which we have engaged in, on and off, since 2007—it seems longer—when the noble Lord first joined this House and became a Home Office Minister. It is much to be regretted that that opportunity of many days and nights of debate is to be denied us this time and perhaps—who knows?—for the foreseeable future.
It is also to be regretted that there will not be time for detailed consideration of each of the proposals before us tonight, as there is much to consider. The Bill comes up to the standard of earlier Bills, although I do not think that “up” is the word that I was seeking. As usual, some more imprisonable offences are created. It is not clear to me exactly how many will be created to add to the 1,472 created since 1997.
There are more civil orders, which are complicated and demanding of police time, when what is really needed are local arrangements in place and properly resourced to deal with the problem. There are changes to measures that have only just become law—gang injunctions, for example—and more attempts to deal with social problems through law enforcement measures, such as parenting orders for those facing ASBOs. There are measures relating to DNA, where the evidence to support the Government’s proposals is deeply contested and obscure. To use the word “evidence” in this case is stretching its meaning considerably.
It is all rather business as usual. There are, of course, some measures greatly to be welcomed, such as compensation for victims of overseas terrorism, clamping down on car clampers, and measures on domestic violence. At this late stage, I will make only a few comments on those matters affecting children and young people and on gang injunctions on children as young as 14.
No one denies that there are young people caught up in gangs and involved, therefore, in violence. The question is how best to deal with that. The Standing Committee for Youth Justice is critical of these measures. I note that in the Public Bill Committee in the other place the Minister said that at that time—he was speaking on 9 February—not a single injunction on an adult had yet been made. Is that still the case and are we therefore extending a provision that has not so far been used anywhere? On this flimsy basis, the Government are proposing something that has the potential to be a stringent law enforcement measure in the life of a 14 year-old. We understand that the Government expect there to be 80 of these orders in the first year for under-18s.
The illogicality of taking this path becomes apparent when we consider the penalties for breaching the injunction. Normally when an injunction is breached, it is a contempt of court and dealt with accordingly, but apparently this will not work for under-18s, so something else has to be found. The “something else” is a supervision order or a detention order of not more than three months. Since this is not a criminal offence, though, the custodial establishments taking such young people will have to treat them as civil prisoners with separate rules and a separate regime. Perhaps the Minister could confirm that that is the case.
I have gone into a little detail on this matter simply to point out to the Minister that this is not the way to solve serious social problems. The criminal law is there for crime, while social and economic measures are there for social problems. Inserting a hybrid in the middle is not normally a good idea. The noble and learned Lord, Lord Lloyd, made that clear to us earlier today.
Anti-social behaviour orders and parenting orders are another example. Parenting orders are to be imposed when a child breaches an ASBO. The court is going to try to make people good parents under threat of a sanction. Surely support should be delivered in such a way as to enable parents to co-operate, not to feel that they are criminals.
We can but hope that the long period that we have lived through in this House of trying to solve social problems though a mixture of law enforcement, new civil powers and some criminal law has now run its course. It has been a bad time for the rule of law and for social justice. The noble Lord, Lord Judd, expressed that thought better than I ever could in his splendid contribution, for which I thank him.
My Lords, the Minister said that crime is falling. That is not disputed, but the fact remains that the fear of crime is greater than crime itself. Public perception is shaped by the quality of legislation that we promote and how it is implemented by the criminal justice agencies. It is in this context that we will examine the Bill—and I add that having been burgled twice in six weeks has not in any way influenced my views on this matter.
Let us not forget the point made by the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Dear: this Government have an insatiable appetite for continuing to enact legislation. In many cases it has not even bedded down, and in some cases it has not even been implemented. Parliament has a right to say, “Enough is enough”.
We have come to the concluding part of this debate in the knowledge, as many noble Lords have pointed out, that it is at the tail-end of this Parliament. I suspect that, since we are unlikely to complete all stages of the Bill before the general election, the Government’s aim is to put essential provisions in statute during the so-called wash-up period, a point that was well taken up by my noble friend Lady Hamwee. It is right to point out that we on these Benches believe that there are serious drawbacks to many of the contents, and we would not allow these to be steamrolled through Parliament. While I appreciate the pointed questions put by the noble Baroness, Lady Neville-Jones, I trust that she will also stand firm on that occasion.
Look at the preamble to the Bill on the European Convention on Human Rights. It is the Minister’s view that,
“the provisions of the Crime and Security Bill are compatible with the Convention rights”.
In reality, that means that no more will be done than is absolutely necessary for the Bill to be compatible with the Human Rights Act. There are far too many instances in the past where rights and liberties have been sacrificed or diluted by this Government. The Minister, I hope, will take due note of what the right reverend Prelate the Bishop of Lincoln has said. The values we attach to rights and liberties are not negotiable.
Let me give an example. While the Bill contains a number of welcome features, it is blighted by the Government’s wholly inadequate response to criticism from the European Court of Human Rights of this country’s practice of retaining DNA profiles of people who were never convicted. This point repeatedly arose from almost all noble Lords. This should not be a bargaining issue between political parties, nor should it be allowed to be put in statute until we are absolutely satisfied that no element of such a policy contravenes the rights and liberties we have fought for and cherished for such a long time. We have often seen examples of the assurances given on the face of a Bill being challenged in the courts, including the European Court of Human Rights, and often the Government have been proved wrong.
Of course there are some provisions worthy of our support. The Bill’s provision about the new compensation scheme for victims of terrorist actions abroad is unambiguously welcome. I am glad this had the support of the noble Baroness, Lady Neville-Jones, and more importantly the contribution of the noble Lord, Lord Brennan, among others, is most welcome. May I just correct a small point that may have been misunderstood when my noble friend Lady Hamwee commented on that part of this Bill? She was referring to the Delegated Powers and Regulatory Reform Committee. In paragraph 8 on Clauses 47 to 54, its report states:
“The Committee draws to the attention of the House that under the Bill as presently drafted it will be up to the Government whether or not to bring forward a compensation scheme: there is no commitment to do so on the face of the Bill.”
She was right to bring that to the attention of the House.
There is a need to congratulate the Government on some aspects of the Bill, although many people who often do not see the reasons why such provisions are justified may need convincing. I am talking about the new restrictions on the sale of alcohol in the early hours of the morning. It will be helpful if the Minister could tell us what research has been produced which will justify this measure; quite simply, that would remove the ambiguity that remains with many politicians.
Let me also congratulate the Government on addressing the issue of domestic violence, so ably explained by the noble Lord, Lord Sheikh. The unremitting violence against women requires new measures. It has taken the police a long time to address this problem, but there has now been a sea change in their policies, and more and more forces now have dedicated units to deal with this matter. They need to ensure that they are not hampered in their task. It is for this reason that I also greatly welcome the provision for domestic violence protection notices and orders. These will provide immediate protection for the victims of domestic violence by requiring perpetrators to leave the premises or to refrain from contacting victims. This is a highly practical means of protecting victims pending a criminal prosecution.
There have been ample discussions in the past on anti-social behaviour. It has blighted many of our urban areas, but situations have also been identified where anti-social behaviour orders are unnecessary or counterproductive. I shall resist the temptation to give examples, but past debates in this House have clearly identified what works and what does not. We do not want ASBOs to be a badge of honour. We want orders to address the offending behaviour. It is for this reason that I welcome the provision for family-circumstance assessments to be carried out when an application for an ASBO is made. At present when ASBOs are imposed on young people, they are often doomed to fail because they are entirely negative measures. They prohibit the young person from carrying out specified actions but they do not provide any positive help or support for the young person to change his or her behaviour. I hope that the provision of family-circumstance assessments will lead courts which consider an ASBO to be necessary to accompany them in more cases with individual support orders, which can provide positive help for young people and their families.
I have repeatedly expressed my concern about the stop-and-search policy carried out by the police. As one who has often been the victim of such a policy, I invite the Minister to discard his admiral’s uniform one of these days and come with me to wait on the other side of the Vauxhall Bridge, where he will see the disproportionate impact on the black and minority communities there. There is ample evidence of a difficult relationship between the police and black and ethnic-minority communities. The impact of such action should never be underestimated. There must be something fundamentally wrong when a large number of black and Asian people are stopped but very few feature in the criminal justice process. I am afraid that if we subscribe to the objective of policing by consent, then the consent of the black and Asian community would be withheld because they suspect that the police pick on them.
I thank my noble friend Lady Harris of Richmond for her contribution. I hope that the Minister will take due note of what she has said, because she comes with experience in policing matters. In principle, reducing the number of reporting requirements for the police when they carry out stop and search seems reasonable, particularly as the Bill still requires information on ethnicity to be recorded. But there is a flaw: I believe that the Government are wrong to dispose of the requirement to record whether anything was found as a result of the stop and search. The outcome is more important than simply recording a particular incident. That bears out my noble friend’s point.
The disproportionate use of stop-and-search powers against young black and Asian people remains one of the most important issues in reducing the confidence of minority-ethnic communities in the criminal justice process. Information about the proportion of stops which result in anything being found is surely very important in monitoring whether stop-and-search powers are used appropriately. I share the discomfort of successive Ministers on this issue, but the paramount principle of stop and search based on intelligence should never be sacrificed, and these so-called fishing expeditions must stop.
There has been a good contribution on gang-related violence. Last week’s incident at Victoria Tube station is one of many examples showing that no one is safe in a public place. We need to ensure a safe and peaceful environment for all our citizens, but we must exercise great care that the legislation we enact is both adequate and proportional. For that reason, I do not believe that the Bill is right to extend gang violence injunctions to young people aged 14 to 17. If young people have been involved in gang-related violence, they should be brought before a court and convicted after a proper criminal process, with appropriate safeguards. It cannot be right to use civil court orders for such young people as a substitute for the criminal process, particularly when the Bill provides severe criminal penalties for breach of an injunction. That amounts to the backdoor criminalisation of young people including, almost certainly, many young people from racial minorities.
Let me come back to DNA. Again, as with the stop-and-search provisions, there is the unwelcome sign that black and ethnic-minority persons are adversely impacted by this measure. Retaining DNA profiles also has serious implications for racial equality. People from minority groups are disproportionately likely to be stopped and searched, more likely to be prosecuted rather than cautioned and more likely to be acquitted at trial. Retaining DNA profiles after an acquittal means that the National DNA Database contains the profiles of a disproportionate number of young black people who have not been convicted of any offence. Yet even after the criticism of the current practice by the European Court of Human Rights in the Marper case, the Bill still enables the DNA data of unconvicted people to be retained for up to six years. I want the Minister to explain why the Government have produced such an anomaly. It is indefensible that the national database contains the DNA profiles—as explained by the noble Lord, Lord Sheikh—of 900,000 people who have not been convicted, and that the number is growing by 30,000 a month. In our view, the database should retain the profiles only of people who are convicted of offences. If the Government are not prepared to accept this, we should adopt something much more like the approach that is prevalent in Scotland, as several noble Lords have suggested.
The noble Lord, Lord Mackenzie, had the courage to say that he would advocate the DNA retention of every child born. I hope the Minister will clarify that this is not the policy of the Labour Party. If that is the case, I trust he will understand that the protest that would be made by the public on this issue would make that of the identity card seem like a tea party. The Joint Committee on Human Rights has criticised the Bill’s provision of six years as disproportionate and arbitrary; as not making any distinction between arrests for serious and less serious offences; and for not taking proper account of the stigmatising effect of the inclusion of DNA samples taken from innocent people on the national database. I entirely share these criticisms and call on the Government to take note of them and amend the Bill on this point.
There will be a lot of electioneering between now and the general election in a few weeks’ time. We saw the Conservative poster launch yesterday, with the photograph of Gordon Brown next to the slogan, “I let 80,000 criminals out early”. However, we must not forget that when the general election is over, whoever is in charge of the country will face the same problem of overcrowded prisons, a Probation Service at breaking point, and more and more people detained in conditions not fit for human beings. This does not help the rehabilitation process. Unless we get away from the excessive use of prisons, we may find that the new Government are looking at the same picture. We need rational policies based on sound reasons to establish confidence in our criminal justice system. Let us hope that we can support the good that is in the Bill but reject what impacts on the rights and liberties of all our citizens. That is an issue on which we will not compromise.
My Lords, with this Bill we are in a somewhat weird position. The noble Baroness, Lady Harris, regarded it as strange. To use an inelegant phrase that I learnt many years ago: same difference. Any Bill must have a Second Reading in the Second House to have any chance of getting on to the statute book. With no conventional Committee stage, possibly no Report stage at all and no conventional Third Reading, your Lordships are being denied your traditional role of scrutiny, as the noble Baroness, Lady Stern, pointed out, in favour of the so-called wash-up. This is certainly not a process favoured by the noble Lord, Lord Dear. Essentially, the wash-up is an agreement between the Government and the official Opposition.
Possibly like the right reverend Prelate the Bishop of Lincoln, listening to and thinking about this Second Reading debate made me regret that I returned my 3D glasses after I went to the cinema a couple of weeks ago to see “Alice in Wonderland”. The Minister will, no doubt, have retained his, given—as he admitted at Starred Questions last week—that he had been a Royal Navy gunnery officer. This is the last Home Office Bill before the imminent general election. I repeat: it will not have a conventional Committee stage at all. Neither the Minister nor I have the slightest idea of how much, if any, of it will get on to the statute book. For once in his life—at least in recent years—the Minister will have to do what he is told. Given that the final result of the Bill is above my pay grade and, I rather suspect, his, neither of us has the slightest idea whether it or any part of it will survive the wash-up. Doubtless, though, he has his suspicions about the fate of the retention of DNA provisions, which have been condemned by almost every speaker in your Lordships’ House this evening, with the notable exception of two. My noble friend Lady Neville-Jones dealt with our attitude to these and I will not repeat what she said. Suffice it to note that both the Joint Committee on Human Rights and your Lordships’ Constitutional Committee doubt whether Clauses 14 to 21 really are Human-Rights-Act-proof. Like the noble Lord, Lord Dholakia, I share that doubt.
It used to be said that there are lies, damned lies and statistics. Today, I am afraid we have lies, damned lies and government pronouncements on Conservative policies. I was surprised by the Minister of all people falling into this trap by suggesting that our policy, which includes holding digitised samples in a sex case, would have prevented a rapist from being caught 12 years later. It would not. The right reverend Prelate the Bishop of Lincoln spoke of the presumption of guilt if your DNA is retained indefinitely. He is absolutely spot on. Such presumption will be likely if, for example, a foreign police force or Interpol interrogates the database.
On the point made by the noble Lord, Mackenzie of Framwellgate, what is possible is not always right or legal. The noble Lord, Lord Dear, elaborated on that point. We are entering into something of a legislative wonderland with a rag-tag, pre-election Bill sweeping up the last gasps of a Home Office that for 13 years has been notoriously ineffective and at times staggeringly incompetent. I am grateful for the support of the noble and learned Lord, Lord Lloyd of Berwick, in saying that, in order to create something for the Lord Chancellor’s Ministry of Justice to do, it was necessary to raid the Home Office for suitable subjects. That is no doubt why we have this slide from the criminal to the civil—an example of disjointed government.
Stepping into this Bill, I feel like Alice as she fell into the rabbit hole, having to take in an assortment of proposals from car-clamping to mobile phones in prisons, from domestic violence to the sale and supply of alcohol. I cannot quite remember whether it was the Mad Hatter or the March Hare who was endlessly late for an important date but this applies most pertinently to Clauses 42 to 44 on wheel-clamping. Moans about this have been around from the beginning of the Government’s time in office. Wheel-clamping by unscrupulous firms rightly provokes great ire among motorists. While we recognise that clamping has a role to play in traffic management, we are pleased that the Government have finally decided to act on rogue clampers. I add my praises to those of the noble Baroness, Lady Meacher.
Like the noble Baroness, Lady Hamwee, we are pleased, too, that the Government have introduced new proposals to help victims of domestic violence. These so-called “Go” orders will allow the police to issue a domestic violence protection notice which could ban the alleged perpetrator from the neighbourhood for 48 hours and, if extended by a magistrate’s court order, by up to four weeks. Noble Lords will note that my right honourable friend Theresa May has committed our party to working with others to do as much as we can for victims of domestic violence but we have worries about the operation of these new orders. The Minister will be aware that the charity Refuge has raised serious concerns. What provision will be made for those excluded from their homes? We have yet to hear what the Government are planning. Plainly they are not clear on this either, hence the sensible precaution of piloting these orders.
I regret that of less significance are the parenting orders in Clause 41. It is likely that these will apply to only a handful of families every year yet Ministers have trumpeted them as the new solution to anti-social behaviour. We need to take a thorough look at anti-social behaviour, its causes and its cures. After a decade of initiatives, the Government are doing no more than putting a plaster on a festering wound.
Clauses 34 to 39 extend the yet-to-be-enacted provisions of last year’s Policing and Crime Act so that 14 year-olds may now receive injunctions for gang-related violence. My honourable friend James Brokenshire pointed out in another place that,
“the youth gang injunctions import a whole new concept—the concept of the civil courts having sanctions, including youth custody, which was previously reserved for the youth courts. That is intended to be tested not through legislation, but through a pilot”.—[Official Report, Commons, 8/3/10; col. 117.]
That is another new idea, another pilot, but it misses the point.
I agree with those noble Lords who said that the police need to be freed up and given powers to deal immediately and effectively with the gang incidents which increasingly blight our towns and cities. That is why stop-and-search powers are, I regret, needed. However, I agree with my noble friend Lord Sheikh and the noble Lord, Lord Dholakia, that the reporting should be restricted to vital information. I very much regret that we have reached the point where one piece of such vital information is ethnicity—but that is, I regret, necessary. We have almost reached the point where a clip round the ear from a policeman should absolve the latter from prosecution for assault. Perhaps that would help instil into 14 to 18 year-olds the rules that the noble Lord, Lord Judd, and the noble Baroness, Lady Stern, spoke about.
We see the sticking plaster out again with the air gun and alcohol provisions, referred to by my noble friend Lord Shrewsbury. It will now be an offence to fail to take precautions to prevent a minor gaining access to air weapons. That is well and good, but what constitutes a reasonable precaution? The Bill is silent. It is also silent about the real problem—guns that fire live ammunition. The Government seem to have thrown their hands up at that; it will be a new Parliament and a new Government who deal with that scourge. Why, as my noble friend asked, do the Government not wait for the Violent Crime Reduction Act to bed down before deciding that it is not working satisfactorily? The old tag, piling Pelion on Ossa, springs to mind.
There is, too, the notable omission of anything to deal with knife crime, which we are told is much more prevalent. I suppose that the Minister will say that they have dealt with that. The Tackling Knives action plan channelled £7 million into 15 key areas. And what was the result? It did at least hold the numbers of 13 to 24 year olds admitted to hospital with violent assault injuries more or less steady; but outside these 15 areas, such admissions rose by 2.5 per cent. That was hardly a resounding success. We have been there, done that, and failed again. We cannot go on like that.
In Clause 55, there is a backtrack from the 24-hour drinking culture. Indeed, there never will be such a culture if the proposal to prevent the sale of alcohol between 3 am and 6 am is enacted. The much-hoped-for café culture has yet to arrive; but in the mean time those hoary old twins, easy access to alcohol, and crime and disorder, like Tweedledum and Tweedledee, have skipped menacingly along. The Budget last week talked about taxing cider by alcoholic strength, rather than by product description, and we on this side of the House can see the logic of that. But why tax only cider, not beer, of which I should have thought more is sold?
“We done right”, as the noble Lord, Lord Brennan, said, regarding Clauses 47 to 54, on his campaign of many years for victims of terrorism to be compensated in the same way that they would be if the offence were committed in this country. Over many years, I have seen campaigns of your Lordships’ House reach the statute book more often than not. This is an example of that.
We are coming to the end of a debate on what is likely to be the last government Bill to be put before this dying Parliament. It contains some clauses to which we do not object and some which we should have preferred the Government to have kept to themselves. It seems to me, however, that most of the proposals in the Bill are necessary only because the policies enacted by this Government over the past 13 years have not amounted to much and have not solved the problems that they were designed for. We will be left with that legacy of a broken Britain, even as the Labour Administration fade from office, like the Cheshire Cat leaving only his self-satisfied grin behind.
My Lords, this has been a very interesting debate and your Lordships’ thoughtful contributions have yet again demonstrated the impressive depth of knowledge in this House on a whole raft of important issues. I hope noble Lords will forgive me if in the time available I do not respond to all the points raised. I normally keep a note of how many questions I am asked, but I ran out of space on this occasion so I will not be able to cover them all.
I will start with the noble Baroness, Lady Neville-Jones, and a point which applies to a number of the issues here. Although people might dispute the British Crime Survey or have other disputes, there is no doubt whatever that there has been a dramatic reduction in crime since 1997. What is remarkable about that is that it was perceived wisdom up till then, and certainly from the war onwards, that crime would inexorably rise all the time. That was what everyone said it would do and there was no way of stopping that happening. Actually, we have stopped that happening, and that is an incredible success. Perhaps it is to do with some disjointed bits and pieces of legislation or all sorts of other things, but we have done it and it forms a backdrop to what we are talking about tonight.
The noble Baroness also touched on the business of mobile phones and the fact that they have not been allowed to be taken into prison for some time. She is absolutely right about that, but it was not an offence to have one. The ways of getting phones in were quite remarkable so we needed that offence on the statute book. It makes absolute sense. We have also put in hand a mass of things to try and stop parts of phones like SIM cards getting into prisons, looking for example at where they are kept and how they get into prisons. People have to sit on a special chair which checks whether they have inserted these items into any part of their body. We have ways of identifying when a phone transmits. We put a lot of work into the science and technology strategy to be able to pinpoint to a matter of feet where a phone is when someone uses it. We have done a great deal here, but it is absolutely right that we should make this a crime, and therefore I do not apologise for that at all. The noble Baroness also asked about the legislation to bring terrorism stop and search provisions into conformance with the ECHR. We are seeking to appeal the decision to the Grand Chamber of the European Court of Human Rights and we will consider our response in the light of the outcome of that appeal.
On stop and search, there was talk about why information could not just be radioed into control. The stop and search record is an important safeguard if we are really going to monitor things—a number of speakers touched on this. By trying to do this it has been found that it takes longer to transfer these data this way than mobile data or manual form. We have looked into it and we are trying to find ways of doing these things better. It is absolutely right that we try to continue to reduce bureaucracy. We have been trying to do that and we have a reasonably good track record, certainly over the last three years or so.
In reference to DNA and people voluntarily going to a police station and ending up on the database, a person has to be arrested for a recordable offence before DNA can be taken; if they go voluntarily it is not kept. Also on DNA, I turn to the timescale for guidance to chief officers. The guidance is being developed at the moment and we will seek to introduce it as soon as possible. Although chief constables will still be responsible for the final decision, they must act in accordance with the guidance. We believe their discretion would be very heavily circumscribed. It would be a very bold chief constable who ignored that specific guidance.
Control orders were touched on by a number of other speakers. I know people do not like control orders—I do not think anyone would contest that. Indeed, I have said a number of times on the Floor of the House that when I came into post I did not particularly like them, and I looked in great detail at whether we had to keep them. It has been said that we would look at and review these after the election, and I think the other side of the House would do the same. But they are in existence, and it is right that if the police arrest someone they should be able to search them, particularly if this person is almost by definition extremely dangerous. It is absolutely right therefore that that should be done.
There was a bit of talk about muddled thinking. The quote that I think the noble Baroness was looking for related to the fact that the timing in the Scottish model was based on no research whatever. That is absolutely correct. As I said, the Scottish police were not at all happy about it, as they stated quite clearly. I think it is much better to look at this matter with some sort of evidence, and we have done that.
The noble Baroness, Lady Hamwee, together with a number of other speakers, very kindly supported us on the provisions relating to domestic violence. She is absolutely right: this is a vile and appalling thing. It is something of which I was relatively unaware until I came into this post. I had not realised the immense scale of the violence and the huge damage that it does to so many people. It is quite horrifying, and therefore I am rather pleased that we are trying to move forward on it. Although we do not have details of exactly where the people who are moved out of their homes go, these provisions are based much more on the view that the people who have the violence done to them and their children should stay in the family home rather than the other way round. We will have to look at the detail but I think that we are approaching this issue in the right way.
There was also support for the provisions on compensation for attacks overseas. Although my noble friend Lord Brennan gave plaudits to a number of other people, he has done some remarkable work on this and we all thank him for it. It is definitely needed and I agree that perhaps we should see whether anything can be done retrospectively. However, one has to take things one step at a time.
The noble Baroness touched on the question of Clauses 47 to 54 being permissive. The noble Lord, Lord Dholakia, also referred to this and my noble friend Lord Brennan said that he thought it was pretty certain that we would implement this scheme. I think I can assure the House that we have every intention of establishing it, and it would be extraordinary to find that it did not move forward. However, I take the noble Baroness’s point.
The noble and learned Lord, Lord Lloyd, and a number of other speakers mentioned injunctions against gang members under the age of 18. When one looks at the recent case at Victoria Station and at other cases, one cannot help thinking how much better it might have been had these injunctions been in place so that one could have stopped the gangs meeting for their fight. That is what the injunctions are aimed at and, had that been the case, we would not now have a dead child and a murder case. Our criminal system is often extremely good at finding people guilty once there is a body but I would prefer to prevent there being a body in the first place. That is one difficulty with attacking issues in this way.
Again on control orders, as I said, it is important that we allow the police to search people. I think that the noble Baroness also felt that to be the case, so I thank her for that.
With regard to DNA, the noble Baroness said that we had been knocked back and she asked whether we were confident that that would not be the case with our new proposals. As I said in my opening speech, I am confident about that; I believe that they are compliant. Much of this is based on judgment, and our judgment is that we have placed this issue at the right level. I admit that we have biased the proposal towards victims of crime but I consider that to be important. People do not need to worry about being on the DNA database, as that will not be on their record. No one really knows about it. If you are arrested, that is on your record and will become known during a CRB check, but the fact that you are on the DNA database absolutely will not. I do not believe that it is as huge an imposition as people might think, but I understand where people are coming from in that debate.
Clause 14 requires the police to delete the DNA of those who have been arrested in cases of mistaken identity. They have to do that. The right reverend Prelate the Bishop of Lincoln raised that matter and I hope that my response has satisfied him. He also touched on the over-representation of BMEs—black and minority ethnic people. A number of other speakers, including the noble Lords, Lord Sheikh and Lord Dholakia, touched on this. We are not at all complacent; it is a real problem. We must do more about it. We are trying to do something about it by developing tools to analyse the issue. However, it raises the point that when you need to take data for this analysis you inevitably have more bureaucracy. It is one of those balances. I have no easy answer. Under PSA 24 we have introduced targets for local criminal justice boards to analyse ethnic monitoring data but it is not good and it is not right. This imbalance should not exist and is very unsatisfactory. I was pleased that the right reverend Prelate thanked the Government for the work they have done on racial integration and care for the vulnerable, but it is an area in which we must do more.
My noble friend Lord Brennan gave huge plaudits for others but we understand how much he has done and thank him for that. The retrospective application that he spoke about is an issue I believe we need to look at. I was absolutely delighted when the noble Earl, Lord Shrewsbury, said he intended to talk only about matters that he knows about—I wish I could always say the same thing. Indeed that is what he did. He spoke for only two minutes which I found rather refreshing. To an extent I shared his point that people who have weapons and hold them correctly do normally understand the risks and dangers of them and I had some sympathy with what he was saying.
The noble Baroness, Lady Harris, talked about stop and search and again touched on the BME issue, pointing out that it is not in the Bill. It has been said by a number of people that the Bill is a hotchpotch, but if we had included some of these other things we would have had even more of a hotchpotch, although I would not have described it as that. You cannot have it both ways. The noble Lord, Lord Dholakia, referred to me taking my uniform off and getting searched. I was stopped and searched in Birdcage Walk. When the officers realised who I was they said rapidly they did not want to continue but I told them that they must. The matter went from a constable up to an assistant commissioner in the course of the 20 minutes that we were talking. I therefore know exactly what it is like but I still take the point on the BME issue. I was very impressed that when the noble Baroness was stopped she had a limousine; I have something that I refer to as my uprated roller-skates as a ministerial car.
The noble Baroness, Lady Meacher, spoke very eloquently about wheel clamping. We agree absolutely with her. It is something that we needed to get to grips with. It is easy to say it should have happened ages ago but it is sometimes quite difficult to find parliamentary time to get some things done quickly. I am very glad we are doing it now. It is awful. There was a particularly nasty and unpleasant case in Portsmouth, involving huge amounts of money and people who were very vulnerable. Clamping often involves old people who are visiting relatives. It is very unpleasant and I am pleased there is something in the Bill on this issue.
I was very pleased to have the support on the DNA issue of my noble friend Lord Mackenzie of Framwellgate. He has a great depth of knowledge—35 years or so—and I liked the way he spoke about DNA supporting justice by eliminating innocent people, which of course it does. It is very interesting that there have been a number of people on the sex offenders register who have volunteered to have their DNA on the database so that it quickly clears them when there is a nasty incident in their area. I thought that my noble friend spoke very convincingly and persuasively and I believe that the average man in the street thinks in that light as well.
My noble friend also talked about bureaucracy. As he said, a certain amount of paperwork is needed, but there is also a need to drive this down. I think that we all agree. I have some sympathy for his view of citizens who try to stop anti-social behaviour. I have had experience of incidents that were similar to the ones to which he referred. I stopped a young man who pulled out a knife and stuck it into the seat on the train. I had a bit of a confrontation with him and took the knife off him, but he then climbed off the train. It is quite tricky sometimes to know where one is placed, which is quite worrying, as my noble friend rightly says. It is difficult to judge how to handle the situation, particularly if you have your wife or someone with you when this is going on, and to judge how you will be handled as a result. I agree that this is something that we need to address.
The noble Lord, Lord Dear, touched on the wash-up. I have been here for only two and a half years, so I would be wary of condemning a procedure of this House or of the other place, because it is a procedure. Perhaps he is correct that it should be condemned. The Bill was introduced in the other place in November, so it has been running for some time, but I take his point about where we are now. A number of other speakers touched on that. The noble Lord seemed overall to support some of the other issues to which the Bill relates, but he is one of the people who does not feel that he can support the DNA element of the Bill. Some people say that they are willing to support storage for three years but not six years. Either you do not take DNA from people who have not been found guilty or you do, rather than arguing about keeping it for three years or six years. I find it quite difficult to see the logic of that.
My noble friend Lord Judd spoke eloquently about security. I particularly liked the fact that he thanked all those who often work 24 hours a day to protect the greatest human right that we all have: the right to life. He, as a couple of other speakers did, reminded me of the issue of the 42-day detention, for which I thank him. However, that issue allowed me to get an award from the Guinness Book of Records for the largest defeat in the House of Lords since the hereditary Peers system was changed. I got something out of that and look on it, rather as I do my Blue Peter badge, as some sort of accolade.
In my opening speech, I talked about DNA, the JCHR report and the Constitution Committee, so I do not intend to go over that again. I made clear the position as I see it and it would not be appropriate to go through it again now.
The noble Lord, Lord Sheikh, talked about bureaucracy and the BME issue, on which I have touched already. He was supportive of the domestic violence order but was concerned about some of the details. DVPOs are not a substitute for prosecution. Criminal prosecutions should continue to be brought when there is sufficient evidence. However, as the police and the groups who work on this say, in all too many cases it is quite difficult to get such evidence. I believe that we should be able to proceed against offenders, but normally that is the preferred route.
The noble Baroness, Lady Stern, was, as usual, a stern critic of mine. I always look forward to her interjection in these debates and I will miss that after two and a half years. I will not go through all the points that she made, but she asked in particular about the status of young people who are subject to detention orders. The Policing and Crime Act 2009 sets out their status. It is correct that the position is different from that of young people who are detained under existing criminal legislation. This is appropriate, as the breach of a gang injunction is not a criminal offence, but I understand the noble Baroness’s difficulty.
The noble Lord, Lord Dholakia, rightly said that perception is important, but that is to do not so much with our legislation as with the media, more than anything. I can think of certain papers, which I sometimes look at, that almost run an agenda. Perhaps it is not an agenda but it is rather sad. They focus on dreadful things that have happened because dreadful things do happen.
The noble Lord, Lord Skelmersdale, talked about a broken Britain. I do not accept that this is a broken Britain. I do a lot of work with cadet forces and I live in Hackney. It is still a marvellous country, which is why so many people want to be here. I am thinking about those people who say appalling and dreadful things about our country and want to destroy our way of life but, my goodness, as I have said before, when you try to get them out of this country to somewhere else, they stick like bloody limpets. No wonder, because it is a really nice country to be in. Anyway, perception is important and I am afraid that the perception is just beginning to match the reality, which is that there has been a reduction in crime. As I say, I do not believe that we are a broken society. That does not mean that there are not small pockets in this nation that are awful, that one feels desperately worried about and that we need to do something about. I just do not accept that it is all-pervasive around the whole country.
The noble Lord, Lord Dholakia, touched on ASBOs. Where they are applied correctly, they work. I know this just from my own travelling around. In places where they are applied correctly, they work and the local people like them. A couple of noble Lords raised the issue of a total DNA database. As I made clear at the start, that is not appropriate or practical and we could not do it.
On the new licensing rules, I do not believe that we have done a U-turn, as we always said that we would keep this under review and that we would monitor the impact of the Act. Having reviewed it, we found that the introduction of the new rules has not led to widespread problems. Crime and alcohol consumption are down overall, but alcohol-related violence has increased in the early hours of the morning and some communities have seen a rise in disorder at that sort of time. Our main conclusion is that people are using the freedoms but that the local authorities are not sufficiently using the powers to make sure that the Act is enforced properly. It is not the total failure that some people seem to believe it is.
The noble Lord, Lord Skelmersdale, gave a good overview of where he thought we stood. I do not wish to tell the noble Lord what his own party’s policy is, but new Clause 1 tabled by Mr Brokenshire on Report in the other place would not allow the retention of DNA taken from a person who is cautioned. That is what I pointed out in the case I gave, where someone had been cautioned and that was when his DNA was taken, so that would not have happened. If that is not true, then I apologise unreservedly, but I understand that that is the proposal. The noble Lord was good enough to say that he thought that wheel clamping and domestic violence, barring some of the details of the provisions there, were valuable, as also is the compensation abroad. There are some good things in the Bill.
We have a very good record on gun violence. What is interesting is that we are discovering from intelligence now that criminals are finding it very hard to get hold of guns; indeed, we are finding that they only have one or two, which are passed around for a crime because there are so few of them. Therefore, we are being successful, but we need to keep that pressure on. In terms of knife crime, we have been more successful than the noble Lord would give us credit for. I do not want to quote figures, as clearly people do not much like figures, but there has been a considerable reduction in knife-related violence for all ages. The key one is a 33 per cent drop in knife-related homicides, from 81 to 54 cases, so we are achieving things in that area.
I have gone on long enough. Overall, I would only say that there are a number of important provisions in this Bill. A lot of them I have heard general support for: the compensation scheme for victims of terrorism and things like wheel clamping and domestic violence. There are other provisions where we are much further apart, and the DNA issue is one of the key ones there. Our position is clear—we believe our proposals on DNA are correct and strike the right balance, but I can understand where other people are coming from.
It is worth saying that one of the most widely welcomed aspects of our proposals is tucked away in Clause 14—namely, our proposal to destroy all biological samples within six months of their being taken, which is more than most countries do. That is important because the keeping of a biological sample is a real worry, when one looks at what can be done now in the high-tech world of biochemistry and so on. I remind noble Lords that if we do not get this into the wash-up, it is unlikely that the proposal to destroy those samples could survive.
I hope we can continue to work constructively on the Bill. I do not really understand the wash-up process either and so I wait with bated breath until next week. The measures we have introduced will build on our successes over the past 12 years. People might say it has been disjointed but, overall, we have, for the first time ever, driven down crime, and that is a huge success. The Crime and Security Bill will make our streets safer, protect some of the vulnerable and bring justice to victims of crime. Far from being out of steam with no clear focus, we have a very clear focus and other people have muddled thinking.
Bill read a second time and committed to a Committee of the Whole House.
House adjourned at 9.16 pm.