Committee (and remaining stages)
Clause 1 agreed.
1: After Clause 1, insert the following new Clause—
“Power to search for firearms
If a police constable has reason to believe that a person or persons in a particular area may be carrying firearms, he may arrange—
(a) for that area to be sealed off; and(b) for the searching for firearms of any people or vehicles in that particular area, by whatever means he considers appropriate.”
My Lords, this proposal is not new. I brought it forward on 9 October 2006 as an amendment to the Police and Justice Bill. It was voted on and very nearly accepted, having received support from all parties, particularly the Liberal Democrat party. The result of the vote was contents 93 and not-contents 101. The essence of the proposal is to make it absolutely clear that the police have the right to get guns off the streets of our cities and towns. They already have many powers, as has been referred to in previous debates on this subject, but the point of this amendment is that it would make it unequivocally clear to everyone that the police have that right.
Since October 2006, when I last raised the issue, the need for this legislation has become all the more important. Sadly, the extent of gun crime has not really reduced, while in many areas knife crime has actually increased. This amendment is not being put forward on the basis of knife crime, but the same methods by which the police would ensure that guns are not on the street—the use of non-intrusive metal detectors, whether they be arches set up in the street in an area that the police wish to check through which everyone has to pass, or hand-held metal detectors—would be the same. Unlike drugs, which are hard to find without using much more intrusive and controversial methods of searching, it should be possible to make it almost as risky to carry a weapon such as a gun or a knife on the streets as it would be for any of us to attempt to take these objects through an airport and on to an aeroplane in this country. The technology exists, and what is needed is the expectation that it is risky to carry a gun in this country, with the corollary being that of carrying a knife.
There have been so many tragic cases reported since October 2009. One of the most recent, of which all noble Lords will be aware, was that poor young person who was knifed to death outside Victoria station. I am not saying that my proposal would instantly end all such crime, but if it were possible for the police to search without having to go through the other, elaborate legislation that in many circumstances allows searches to be made, and if there were a blanket provision and it were used sensibly, sensitively and intuitively, using good intelligence, I believe that it would be possible greatly to reduce the extent to which people took the risk of carrying a gun or a knife. That is why I recommend it to your Lordships.
I intended to bring this amendment forward had we had a longer opportunity to discuss this important Bill, but it is none the less desirable that we should consider it today. I beg to move.
My Lords, I have supported my noble friend in this amendment on more than one occasion, and I do not believe that any of the circumstances—and they were very powerful ones—that justified that support have diminished in the intervening period. It is important that we should do whatever we practically can to stimulate public confidence in the criminal justice system, and this amendment ought to be carried.
My Lords, we congratulate the noble Lord, Lord Marlesford, on the efforts that he has put into bringing this issue to your Lordships. I was not the holder of my current portfolio on the previous occasion, but my noble friend Lord Thomas of Gresford congratulated him on,
“his fight to widen the security and safety of the ordinary citizen”,
“clearly having pushed the Government along the road to a certain degree”.
My noble friend went to say that at that time, during the proceedings on the Serious Crime Act 2007,
“We on these Benches are, for the moment, happy with the position that the Government have reached due to his efforts”.—[Official Report, 24/10/07; col. 1113.]
I have not had an opportunity to talk to my noble friend today, but having congratulated the noble Lord as I have done, and sharing his concerns about gun crime, I have a number of concerns about the proposed new clause, which seems to be wide. The term “police constable” could mean any officer, while having “reason to believe” and,
“a person … in a particular area may be carrying firearms”
are also wide.
How much of what the noble Lord provides in his amendment is not possible now? Paragraph (a) provides for the area to be “sealed off”. I am not quite sure what that means, but one has frequently observed that the police block roads when they need to do so. I am not sure what the implication of that wording is. Paragraph (b) talks of,
“searching … by whatever means he considers appropriate”.
Again, I am not sure what that might encompass—it seems to be wide. Both people and vehicles are searched now, and we have had many debates on the issue.
While expressing the concerns that I have, I ask the noble Lord if he can tell the Committee what, within the points that he raises, is not possible now.
My Lords, my noble friend is pursuing an important point and we wish to seek clarity on it. My queries are much the same as those that the noble Baroness, Lady Hamwee, has just raised. Some of the powers that the amendment would bring should be ones that the police already have. We would be grateful if the Minister could clarify what he believes the position to be and confirm whether that is the case.
My Lords, we believe that the amendment is unnecessary as the circumstances described are already covered by the powers in Section 60 of the Criminal Justice and Public Order Act 1994. An amendment to Section 60, made by the Serious Crime Act 2007, extended the powers to add a further circumstance in which they can be used—namely, where a serious violent incident has occurred, the police believe that the weapon used in the incident is being carried in the locality and it is expedient to give an authorisation to find the weapon.
Notwithstanding the good intentions of the noble Lord, Lord Marlesford, I also have to say that we consider his proposal to be rather sweeping, as the noble Baronesses, Lady Hamwee and Lady Neville-Jones, have touched on, and lacking in the appropriate level of safeguards for those who might be searched under the power. There is also the issue of the area being covered, as well as a number of other items. On the basis that the powers sought by the noble Lord’s amendment are already largely available to the police, and due to our other concerns, I ask him to withdraw his amendment.
My Lords, that is exactly the response that I expected. It is the response that I got last time; indeed, even the same legislation was referred to. I said then, and I repeat now, that one of the problems—this is made clear on the Home Office website—is that gun control law is extremely complicated. I seek a simple general provision.
In answer to the noble Baroness, Lady Hamwee, of course there are important considerations to be taken into account about how that provision would be used, but then that is something that police officers and others responsible for maintaining law and order have to do every day. All I want is, mainly, to persuade the public that there is provision for any detectable weapon that is carried.
The noble Baroness asked me about the method. I said in my opening remarks that the main method that I envisage is metal detectors, a non-intrusive way of checking. I was asked about sealing off streets. Sometimes that would mean sealing off areas; sometimes not. The sort of thing that I imagine would be practical is that if there were a club in which it was felt that people might have weapons, the police could check everyone coming out of it and then, if people had become aware that this was happening and had left their weapons behind, there could be an appropriate search to pick them up. They could open the lavatory cisterns, for example, and if someone had taped a gun in there, that would be a plus.
I am seeking to provide for the police—using the common sense, sensitivity and imagination that I believe they have—the facility to do this in a way that the public were aware that they had the right, and would expect them, to do. As I said at the beginning, my main objective is to make it a great deal more risky for people to carry such weapons on the streets in this country.
Having said that, of course I did not expect at this stage, during the wash-up, that the Government would be able to accept this amendment. I hope to return to it in due course, but meanwhile I beg leave to withdraw it.
Amendment 1 withdrawn.
Clauses 2 to 13 agreed.
2: Before Clause 14, insert the following new Clause—
“Retention, destruction and use of fingerprints and samples
For section 64 of the Police and Criminal Evidence Act 1984 (destruction of fingerprints and samples) there is substituted—
“64 Destruction of fingerprints and samples
(1) Unless provided otherwise in this section, where fingerprints, impressions of footwear or samples are taken from a person in connection with the investigation of an offence, the fingerprints, impressions of footwear or samples or any DNA profile may not be retained after they have fulfilled the purposes for which they were taken and shall not be used by any person except for purposes related to the prevention or detection of crime, the investigation of an offence, the conduct of a prosecution or the identification of a deceased person or of the person from whom a body part came.
(2) In subsection (1) above—
(a) the reference to crime includes a reference to any conduct which—(i) constitutes one or more criminal offence (whether under the law of a part of the United Kingdom or of a country or territory outside the United Kingdom); or(ii) is, or corresponds to, any conduct which, if it took place in any one part of the United Kingdom, would constitute one or more criminal offences; and (b) the references to an investigation and to a prosecution include references, respectively, to any investigation outside the United Kingdom of any crime or suspected crime and to a prosecution brought in respect of any crime in a country or territory outside the United Kingdom.(3) A DNA sample must be destroyed—
(a) as soon as a DNA profile has been derived from the sample, or(b) if sooner, before the end of the period of six months beginning with the date on which the sample was taken.(4) Any other sample to which this section applies must be destroyed before the end of the period of six months beginning with the date on which it was taken.
(5) Fingerprints, impressions of footwear and DNA profiles are not required to be destroyed if they were taken from a person convicted of a recordable offence.
(6) Where any fingerprint, impression of footwear or sample has been taken from a person who is arrested for or charged with a sexual offence or violent offence, the fingerprint, impression of footwear or DNA profile shall not be destroyed—
(a) in the case of fingerprints or impressions of footwear, before the end of the period of three years beginning with the date on which the fingerprints or impression were taken, such date being the “initial retention date”; or(b) in the case of a DNA profile, before the end of the period of three years beginning with the date on which the DNA sample from which the DNA profile was derived was taken, such date being the “initial DNA retention date”; or(c) if an application is made to the court under subsection (7), until such later date as may be provided by subsection (8) or (10) below.Provided always that if the person is convicted of a recordable offence, subsection (5) shall apply.
(7) On application made by the responsible chief officer of police within the period of three months before the initial retention date or the initial DNA retention date as the case may be, the Crown Court, if satisfied that there are reasonable grounds for doing so, may make an order amending, or further amending, the date of destruction of the relevant fingerprint, impression of footwear or DNA profile.
(8) An order under subsection (7) shall not specify a date more than two years later than—
(a) the initial retention date in relation to fingerprints or impressions of footwear, or(b) the initial DNA retention date in the case of a DNA profile.(9) Any decision of the Crown Court may be appealed to the Court of Appeal within 21 days of such decision.
(10) A fingerprint, an impression of footwear or a DNA profile shall not be destroyed where—
(a) an application under subsection (7) above has been made but has not been determined;(b) the period within which an appeal may be brought under subsection (9) above against a decision to refuse an application has not elapsed; or (c) such an appeal has been brought but has not been withdrawn or finally determined.(11) Where—
(a) the period within which an appeal referred to in subsection (9) has elapsed without such an appeal being brought; or(b) such an appeal is brought and is withdrawn or finally determined without any extension of the time period referred to in subsection (8);the fingerprint, impression of footwear or DNA profile shall be destroyed as soon as possible thereafter.
(12) Subject to subsection (13) below, where a person is entitled to the destruction of any fingerprint, impression of footwear or sample taken from him or DNA profile, neither the fingerprint, nor the impression of footwear, nor the sample, nor any information derived from the sample, nor any DNA profile shall be used in evidence against the person who is or would be entitled to the destruction of that fingerprint, impression of footwear or sample.
(13) Where a person from whom a fingerprint, impression of footwear or sample has been taken consents in writing to its retention, in the case of a fingerprint or impression of footwear or the retention of any DNA profile—
(a) that fingerprint, impression or DNA profile as the case may be need not be destroyed;(b) subsection (12) above shall not restrict its use; provided that—(i) no DNA profile may be retained on any child under the age of 10 years; and(ii) consent given for the purposes of this subsection shall be capable of being withdrawn by such person upon making written application to the responsible chief officer of police or person authorised by the Secretary of State for such purpose whereupon such fingerprint, impression of footwear or DNA profile shall be destroyed as soon as possible following receipt of such written application.(14) For the purposes of subsection (13), it shall be immaterial whether the consent is given at, before or after the time when the entitlement to the destruction of the fingerprint, impression of footwear or DNA profile arises.
(15) In this section—
“DNA profile” means any information derived from a DNA sample;
“DNA sample” means any material that has come from a human body and consists of or includes human cells;
“the responsible chief officer of police” means the chief officer of police for the police area—
(a) in which the samples, fingerprints or impressions of footwear were taken; or(b) in the case of a DNA profile, in which the sample from which the DNA profile was derived was taken;a “sexual offence” or “violent offence” shall mean such offences of a violent or sexual nature as shall be set out in any order made by the Secretary of State with reference to this section.
(16) Nothing in this section affects any power conferred by paragraph 18(2) of Schedule 2 to the Immigration Act 1971 or section 20 of the Immigration and Asylum Act 1999 (c. 33) (disclosure of police information to the Secretary of State for use for immigration purposes).
(17) An order under this section must be made by statutory instrument.
(18) A statutory instrument containing an order under subsection (17) shall not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.””
I shall speak also to the amendments grouped with this one and to our objections to Clauses 14 to 23 standing part.
With this amendment we come to the subject of DNA. In the first debate in which I spoke on the Home Affairs portfolio, I said that for Liberal Democrats, civil liberties are in our DNA. The Minister protested that they were in his too, and I do not for a moment doubt it. Unfortunately, although they might be in his DNA, they are not in this Bill.
The current law on DNA retention has been held by the Grand Chamber of the European Court of Human Rights to breach the European Convention on Human Rights. The “blanket and indiscriminate nature”, to use its words, of the law under which the police may retain indefinitely the DNA of the person arrested, whether or not convicted or even charged, failed to,
“strike a fair balance between the competing public and private interests”.
Following the case of S and Marper the Government have got to do something. However, what they are choosing to do in this Bill is only a marginal improvement. Those arrested but not charged or convicted will still have their DNA profile kept on the national DNA database for at least six years. In our view, the retention of the DNA profile of an innocent person for six years is six years too long.
I spoke at Second Reading of the importance of the presumption of innocence over guilt holding in our technologically advanced world, of arrest not being confused with conviction and of the stigma attached to DNA retention. Evidence of that was debated not only in this House but in the Commons and given to the Home Affairs Select Committee, which has recently published a report on the matter.
The Home Office has relied on research which itself relies on the flawed premise that arrest is an indicator of the risk of offending—arrest not conviction—and it measures the risk of offending by the risk of rearrest. So it appears that two arrests are evidence of criminality. I could go on but I shall not do so because I am aware of how much business the House has to get through—I was going to say tonight but perhaps I should say before we start business again tomorrow.
Members of the Commons discussed the matter at length—they went on because they had more opportunity—and the Conservative Member Mr Brokenshire said that,
“the measure fails to take account of one of the fundamental principles of our liberal democracy: the presumption of innocence before the law unless one has been proven guilty. That principle should be an important guiding factor in framing the debate on retention, rather than being an inconvenient anomaly, as the Government appear to view it, given their historical approach to DNA retention”.—[Official Report, Commons, 8/3/10; col. 41.]
He said that when introducing an amendment that is exactly the same as the amendment we have tabled. I do not often flatter the Conservatives—either sincerely or insincerely—but they will recognise the imitation on this occasion.
I made it clear at Second Reading that the amendment is a compromise. The Scottish model, which this is—or, one might say, the model of my noble friend Lord Wallace of Tankerness—self-evidently is more proportionate than the provisions in the Bill. Innocent people are treated as innocent but there is an allowance for a three-year retention of data in the case of those suspected of sexual or violent offences. I have flattered the Conservatives and now I shall quote the noble Baroness, Lady Neville-Jones. At Second Reading—which seems a long while ago—she said:
“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”.—[Official Report, 29/3/10; col. 1234.]
That is quite right.
In winding up for the Conservatives, the noble Lord, Lord Skelmersdale, 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”.—[Official Report, 29/3/10; col. 1268.]
He said that predicting what would happen with the Bill was above his pay grade, although it was obvious from his speech that he expected it not to see Royal Assent. I therefore trust that the noble Baroness will not now support the Government in view of her own and her party’s clear position previously. I await to hear her views with interest, but if she tells the House that this is a matter for review and if her party finds itself in a position to conduct a review it will do so, why not on the basis of the Scottish model rather than the regime which her party and she have condemned and which may well be—following high legal costs and much emotional agony—condemned by the European court? I beg to move.
My Lords, I am a member of the Joint Select Committee on Human Rights; I shall leave it the day after tomorrow, or whenever Parliament rises, because I have done my four years. The committee looked at this issue and did not think it would pass the Human Rights Act hurdle. When you take a horse racing, it is silly to put up an overscoped fence so that it falls flat on its face, and then put up another fence which is too big for it and, bang, down it comes again. That is an exact parallel to what the Government are doing in this case.
DNA is one of the greatest aids we have had in modern times to assist in solving crimes, particularly unpleasant and nasty ones—I totally concede that. However, we must never lose sight of the liberties of the subject. That means that the DNA collected from innocent people who volunteer to give it in a murder inquiry should automatically be destroyed; the DNA of people who have been arrested but against whom charges have not been brought should be destroyed; and the DNA of people who are charged and acquitted should also be destroyed. I do not know whether the amendment goes far enough or whether it is comprehensible—I looked at it, tried to read it but could not understand it—but I was efficiently briefed by Liberty. I believe that that sums up Liberty’s position, as well as I can remember it, and also the position of the Joint Committee on Human Rights. We were unanimous on this issue, as we are on quite a few matters, and there was no question of any split or vote on it.
When a case is lost in the European Supreme Court, it is stupid of the Government, instead of accepting that the case is lost, to produce legislation which will lead to them losing again. I fear that the provisions in the Bill will produce another fall at the second hurdle. The amendment should at least be taken seriously, if not accepted.
My Lords, I, too, support the amendment. I can always be relied upon to be consistent on this issue. From the point where the law was changed to allow the retention of the DNA of those who were arrested but subsequently not charged, I have opposed that retention. People feel quite seriously that there is a stigma attached to the retention of DNA. If they have been arrested and no subsequent charge follows, its retention on the database makes them feel that a terrible wrong is being done to them by the state. That might be different if everyone were on the database from the word go, but it is not the situation that we are currently facing.
I was saddened that the Government did not accept, in light of the European Court’s decision, that there were breaches of human rights principles. While I was not particularly accepting of the Scottish formula, I felt that it was a compromise that the Government should have willingly accepted. It is a great regret to me that they have not done so. I, too, shall support the amendment. It seems to me that a case will go up through the courts, and it is very likely that it will be found that the Government’s new formulation will, like the old one, offend against human rights standards. I would have thought that this was a moment to say, “Enough. Let’s reflect on this over the next period and see what a new Parliament, in whatever form it is, might feel about all these matters in a fresh dawn”.
My Lords, having spoken on this subject at Second Reading, I feel compelled to say that I have a good deal of good will towards the drift of the amendment put forward by the Liberals. I find it very sad that, at the end of this Parliament, we should be endorsing the erosion of one of the fundamental principles of justice in this country as I have understood it, which is the presumption of innocence.
There will be those for whom there is no question of their presumption of innocence; there will be some who have a qualified presumption of innocence because their name is on a register or record even though they have not been found guilty of any crime. This is not an acceptable situation. I also find it very sad that we should at this stage be dragging our feet not only on what our own Joint Committee on Human Rights and Select Committee on the Constitution have said but on what the European Court has been so firm about.
The issues of proportionality, too, are central to our whole tradition of justice, and this is what has raised anxiety. I would have liked to feel at this stage that we were in the vanguard of defending these principles. I am really concerned about the erosion of everything that we have understood to be the cornerstones of our system of justice.
I am sorry to have to say these things this evening, but, having spoken at Second Reading, I think that it would be pretty feeble just to walk away and not put on record my feelings about the amendment. I shall be very sad if my noble friend is not in some way able to meet them, because I have the highest regard for him and all the responsibilities that he carries so cheerfully and willingly on our behalf. I regard myself as one of the firmest supporters of the Government, but I can put it no other way than to say that I am very sad to find myself in this predicament this evening.
Your Lordships might be interested to hear a story which I am about to tell of a person who had his DNA taken when he had no criminal record. Having gone through the immigration process at Heathrow Airport—he was a British citizen—he was stopped by Special Branch on the land side, taken aside, detained and made to give a sample of his DNA and fingerprints. When I was asked to assist him in getting the samples removed from the database, I wrote to the relevant Minister in the Home Office and was told there was a procedure whereby one could appeal to the relevant chief officer of police for a special review. I wrote to the chief officer of the Metropolitan Police; I gave him the details of what had happened and asked him to conduct a review. After a while, he wrote back and said that he was not the chief officer concerned because he did not deal with Special Branch cases. I therefore had to write another letter to a different chief officer of police.
To cut a very long story short, it took 14 months for that review to take place, during which the man concerned had, as noble Lords have said, a stigma hanging over him because his samples were taken on the database. People would say, “Well, surely he must have been guilty of something if they felt so certain that the DNA was required to be kept in this way”. I subsequently discovered that only three people had been successful in making a special appeal and getting DNA samples removed from the database. Everything that has been said about the violation of our human rights and the ignoring of the European Court is reinforced by what one knows about these cases.
I sincerely hope that the Minister will pay close attention to the amendment and, if not agree to it, at least guarantee that we will take steps to bring ourselves into conformity with our commitment to European human rights legislation.
My Lords, the retention, destruction and use of DNA samples have been the subject of much debate over several years. The controversy has centred on the indefinite retention of the DNA profiles of those who have committed no crime or who have been cleared of allegations against them, which has been found to be illegal. We on these Benches, with others, have successfully pushed the Government to end the permanent retention of innocent people’s DNA. Hence we now have these government proposals in the Bill.
I said at Second Reading that we still preferred the Scottish model, under which the state would retain for a limited period of three to five years the DNA profiles of those not convicted of an offence only in circumstances where charges relating to a crime of violence or of a sexual nature had been brought. The Home Secretary says that the police in Scotland do not think that their model works well; the Minister said the same thing when we last debated this matter. However, this is not borne out by the evidence, which shows that the Scottish system has a higher detection rate than that in England and Wales. Moreover, Labour Members of Parliament supported the Criminal Procedure (Scotland) Act 1995 which put that system in place. I therefore beg leave to take issue with those who claim, as the Home Secretary has done, that to take the Scottish system seriously is not to take the issue seriously.
The problem is that we are out of time for proper discussion, so we have to look at the essentials. First, we now have cross-party acceptance of the principle that the indefinite detention of the DNA profiles of those who are innocent is wrong and ineffective. We need to get this principle into law. It is also a requirement of the ECHR’s judgment, which we agree with and respect. Secondly, the legislation offers some control over one of the other most obnoxious features of current system, which is the postcode lottery involved in getting off the database the profiles of those who should not be on it.
At this late stage, the Liberal Democrat Benches have put forward an amendment which in some respects travels back from the rather uncompromising position that they have taken hitherto. Sadly, it is too late for proper discussion. Were we able to have that, there would be a number of changes that we would want to try to make. The amendment fails for instance to provide for getting on to the database the profiles of those who have been convicted of criminal offences but who have never been put on it. There are a significant number of people who should now be on that database, if we regard the database as being a way of usefully detecting crime.
The position of my party is absolutely clear. We do not resile from the view that the entire system needs to be overhauled, not piecemeal but systematically. A Conservative Government if in office will do the following: they will legislate in the first Session to make sure that the DNA database includes permanent records only of people who have been convicted of an offence and, for a more limited period, those charged with sexual or violent offences. Secondly, we will focus efforts on collecting the DNA of all existing prisoners, those on probation, on licence or in prison or under the supervision of the criminal justice system, which the Government have failed to do. Thirdly, we will introduce new guidelines so that those wrongly accused of minor crimes and who have volunteered their sample have an automatic right to have their DNA removed from the database—one thing that this House most strongly objects to. It is not about one party being soft on crime and one party being tough on crime, as the Home Secretary said; that is absolute nonsense. We all agree that DNA is an important and useful tool. The issue is one of creating a DNA database that works and that has public trust, given that detections have fallen although the number of profiles has ballooned. This is a point that should not be missed. In fact, the prison system is not working very well because, although we have increased numbers put on it, the actual number of detections is falling.
Systematic reform is needed and a new approach focused on the guilty and on those who pose most risk. This is a fundamental root-and-branch change that we will not achieve today but which must be achieved by a new Government. For now, we take the view that it is important that we have in law acceptance of the proposition that the indefinite retention of innocent people’s DNA is unacceptable and illegal.
My Lords, I certainly did not understand wash-up before, and I am still not sure that I do understand it. However, it seems to me to be an agreement between the main parties about finding a way ahead, so I was rather taken aback by the noble Baroness, Lady Neville-Jones, listing a great long list of proposals for what is intended to be done. My understanding was that it was only because of an agreement that this has come through—but clearly I have been taken flat aback on that one and do not understand what is going on. But that was my understanding of it.
In any event, as has been said, the proposed amendments would replace our proposal with a variant of the Scottish retention model. It was discussed, of course, in the other place, where it was pressed to a Division and defeated by some 79 votes. As the Committee will be aware, Scotland has a very different approach to the retention of fingerprints and DNA from the one that the Bill proposes. The Scottish model is that DNA samples and resulting profiles must be destroyed if the individual is not convicted or granted an absolute discharge, and DNA may be retained for those not convicted only if they are suspected of certain sexual or violent offences, when it may be retained for three years. That can be extended at perhaps two years at a time with the approval of a sheriff. While there was some support for the Scottish retention model during the Bill’s earlier stages in the other place, it should be noted that the Scottish Executive, as with so many other things that the Scottish Executive do, arrived at their model with no research whatever. It was just plucked out of the air. The model also has significant operational limitations. As the noble Baroness, Lady Neville-Jones, says, it is not just the Government’s view that the Scottish model poses problems for the police; the Scottish Association of Chief Police Officers said in February 2008:
“Our position is that we should move into line, after discussion with Scottish Government, with England and Wales and DNA samples should be taken and retained under strict guidelines from offenders. We are in favour of mirroring any legislation in the UK Parliament allowing the taking and retention of DNA samples from persons arrested for an offence”.
It is interesting to note the talk about higher detection rates in the Scottish example. That is not the case. The Scottish DNA database does not have a higher success rate. The figures quoted on one occasion look at 2005-06 figures and do not compare like with like. The latest like-for-like data, from 2008-09, show that the England and Wales database has a 13 per cent higher success rate than Scotland, so the Scottish Association of Chief Police Officers is correct and our system is somewhat better.
More significantly, consideration also needs to be given to the underlying principal question in this amendment of whether the biometric data of those not convicted of an offence should be treated differently depending on the nature of the offence under investigation. Potentially, that could create different levels of innocence, depending on what it is that someone has not done. We propose a single retention period regardless of the seriousness of the offence for which a person has been arrested. The best available evidence indicates that the type of offence for which they are first arrested is not a good indicator of the seriousness of the offence that he or she might subsequently commit. The Scottish model, proposed in the amendment, therefore risks missing many detections of serious offences due to the nature of the offence originally under investigation. For example, in 2008-09 alone, there were at least 79 rape, murder or manslaughter cases in England and Wales that were matched to the DNA database from DNA profiles that belong to individuals who had been arrested but not convicted of any crime. Of that number, in 36 cases the matches were found to have had a direct and specific value to the investigation. If we had applied the Scottish retention regime and retained DNA profiles only from those arrested but not convicted of a serious crime, at least 23 victims of the most serious crimes, and of course their families, could have been denied justice last year alone.
In the light of the above, and as the retention of DNA is not punitive but a measure to facilitate the detection of future offences, we believe that a single retention period is the correct way forward. Indeed, on the point of it not being punitive, a number of speakers have talked about being on the database as being a stigma. I believe that it is a stigma only if people know that someone is on the database. I personally have no concern about being on it. Almost nobody knows that someone is on the database. It is a stigma only if someone knows that you are there.
On the Motions that Clauses 14 to 23 should not stand part of the Bill, I point out that if these Motions were carried we could be no further forward than we were at the beginning of last year. We would still be in breach of the European Court’s ruling, as a number of noble Lords have said, and we would not have a legislative framework for the retention of DNA profiles and fingerprints. We consider that our DNA retention proposals represent an appropriate balance between public protection and protecting individuals’ rights and liberties, based on the best available research. We also believe that it will meet ECHR requirements and the ECHR judgment. While some have criticised elements of our research evidence, I remind your Lordships of the key points that the evidence points us to. We can justify retaining the DNA of people who have been arrested but not convicted while the risk of offending is higher than that of the general population. Our analysis suggests that that risk, as measured by the risk of rearrest, is higher than the general population for six years following the first arrest. While arrest is only a proxy indicator of the risk of offending, the nature and volume of data currently available to us mean that a more precise arrest/conviction analysis is likely to be less reliable. Yes, we can do more work, but at least we have done some analysis, unlike under the Scottish system. The precise length of time to equalise the risk may vary in either direction due to the uncertainties in the analysis and data. On balance, these uncertainties are more likely to extend the time that it takes for these risks to be equal, which would argue in fact for a longer retention period. But we must do analysis and look at this in much more detail.
The noble Earl, Lord Onslow, referred to samples being taken from volunteers. Those samples can and must be removed from the database on request, and DNA from a volunteer is put on the database only in very exceptional circumstances, at the explicit request of the volunteer.
Ultimately, the evidence can only go so far to answering the question of what is an appropriate retention period. When there are statistical uncertainties around the estimate, the final decision must be one based on judgment—it is not precise yet—and not evidence alone. But we are trying to build up more evidence to get a better database. That is how we arrived at a retention period of six years, the point at which our research tells us that the risk of rearrest returns to the risk of arrest in the general population. We consider that our proposals are a cogent and considered package and represent a huge change from the situation as it stands, as was touched on by the noble Baroness, Lady Neville-Jones, taking us from a blanket indefinite retention, whereby innocent and guilty are treated alike, and whereby DNA profiles are kept as long as DNA profiles—two finite periods based on research and differentiating between different categories of individual. We further believe that the safeguards outlined in Clause 23 relating to the national DNA database strategy board provide sufficient scrutiny and oversight of the process and will result in clear and consistent guidance being issued in future on the destruction and deletion of profiles. A number of speakers touched on that point.
I am particularly disappointed that, after all the consensual work done in the other place to put into place a new role for the strategy board, noble Lords wish to remove Clause 23. I also put on record my gratitude to the official Opposition for agreeing, as part of the wash-up, that our proposed retention framework should be put on the statute book. That agreement means that we can bring an end to the somewhat protracted process of responding to the judgment of the European Court, giving some certainty to both the police service and the public at large that biometric data will be held under a specific and detailed statutory regime. On that basis, I ask that Amendment 2 be withdrawn and that Clauses 14 and 23 should stand part of the Bill.
My Lords, I am very grateful to those noble Lords who have supported my amendment and my opposition to certain provisions in the Bill. I hope that they will forgive me if, in the interests of time, I do not go through all the points that they made. The Minister said that he still does not understand wash-up; he had thought that only what was agreed went forward. He said that after listening to the noble Baroness, who seemed to be opposing the Government’s proposals. All I would say is: indeed.
On having no research of the Scottish model, the Home Office research, by all accounts, seems to have been—what can I say?—a bit dodgy. It is certainly not as substantial or as useful as those looking for a solution to all of this would want to find. I understand, of course, that the police want the most extensive tools possible. The Minister talked of detection rates; my response is that the Home Affairs Select Committee, in one of its conclusions to the report that it published only recently, on 8 March, said:
“It is currently impossible to say with certainty how many crimes are detected, let alone how many result in convictions, due at least in part to the matching of crime scene DNA to a personal profile already on the database, but it appears that it may be as little as 0.3%”.
It went on that,
“we note that the reason for retaining personal profiles on a database is so that the person can be linked to crimes he/she commits later”.
Yes, the Government are proposing a single retention period—but one which is too long.
The noble Lord gave examples of where DNA has been used to solve crimes. We all know about hard cases and bad law. As I have said, the general view is that there is a poor evidence base for what is proposed. He said that if the clauses do not stand part of the Bill, we will be no further forward in responding to the European court. Indeed, that is absolutely my point; it would then be necessary to reconsider the matter.
For the Conservatives, the noble Baroness says that we are out of time for proper discussion, that it is too late for that and, in effect, that the amendment—she did not use this word—is inadequate. I thought that I could have done no better than using the Conservatives’ own amendment. If it is inadequate—in my view it would be a compromise, but one which I hoped would take the noble Baroness and her troops with us—better to start from the inadequate than the bad. The Conservatives, if they do not support these Benches on these amendments, must accept responsibility along with the Government for the bad. I wish to test the opinion of the House.
Clauses 14 to 33 agreed.
Clause 34 : Grant of injunction: minimum age
Debate on whether Clause 34 should stand part of the Bill.
My Lords, I have given notice that from these Benches we oppose Clauses 34 to 39 standing part of the Bill. We gave notice that we also oppose Clause 38 but somebody seems to have dropped it from the Marshalled List in hope. The Minister will not be surprised that I am speaking against all these clauses as a group.
At Second Reading the noble and learned Lord, Lord Lloyd of Berwick, spoke powerfully against what he called,
“a parallel system of criminal justice … using the civil courts”.—[Official Report, 29/3/10; col. 1240.]
He was talking about little bits of criminal law which apply only to the individual who is the subject of an injunction, and not universally, and drawing your Lordships’ attention to the fact that breach of the injunction could lead to imprisonment. This would follow an injunction granted only on the civil standard of proof and created by magistrates and judges sitting in civil courts, with little idea of how what an injunction says relates to the criminal law as a whole.
The gang injunction provisions were introduced in the Policing and Crime Act 2009, which received Royal Assent less than five months ago—only a week before this Bill was introduced in the Commons, extending the provisions to those aged under 18. Clauses 34 to 39 must have been drafted well before Royal Assent of the 2009 Act. However well that legislation for those aged over 18 was thought through, there has not been an opportunity to consider its application, assess practice or review the results. There are, I understand, similar injunctions in place and available in the United States, but I am told that they have been ineffective or even counterproductive there, leading to discrimination and stigmatisation of innocent minority ethnic young people. It is not possible even to begin to consider the position here in practice given the very swift movement of events. Indeed, I do not believe that there was even public consultation in 2009. The gang injunction provisions were not included in the Policing and Crime Bill as originally introduced.
An injunction may be granted if the court is satisfied on the civil standard of proof that a person is engaged in, or encouraged, or assisted group-related violence—in other words, he may never have been convicted of an offence. If he has, he will have been punished for that offence. During the passage of the 2009 Act, the Minister recognised that,
“Changing the law to enable the courts to use injunctions for under-18s would involve a major change in how civil law interacts with minors”.
Quite so. A child cannot be imprisoned, so the powers are for supervision or detention orders on breach of an injunction, though it can have the effect of amounting to house arrest for up to eight hours a day, or up to three months in youth detention accommodation.
The Home Office impact assessment said that an injunction will serve the purpose of preventing acts of serious violence, breaking down gang culture and preventing younger members’ behaviour from escalating, providing the opportunity for local agencies to engage with gang members and develop effective strategies for them to exit the gang. I do not quarrel with those objectives for one moment but I do quarrel with the means—yet more legislation miraculously curing society’s ills. It cannot do it by itself. A child—I emphasise “a child”—involved in gang activities should be dealt with by children’s services and, if necessary, the family courts, as a child in need of protection or at risk of harm. We have a specialist youth justice system. A child accused of offending behaviour should be dealt with not in the ordinary adult court but in a forum with appropriate procedures. A civil detention order goes against the UK’s obligations under the United Nations Convention on the Rights of the Child that custody should be a last resort only. Short-term custody for under-18s normally includes a rehabilitative element—training as well as detention.
Many people have worked hard for many years on seeking ways to deal with young offenders. We see none of that experience coming through in what is proposed in the Bill. What is the necessity for this? There are already many civil and criminal justice measures to tackle criminal behaviour among young people and there is safeguarding legislation which can be used to protect them. Therefore, we believe that these clauses are unnecessary and not thought through. They blur the distinction between the civil and criminal law and criminalise children. They are bad. We oppose the clause.
My Lords, I rise to support the measure proposed by the noble Baroness. She referred to the observations of the Minister in the other place in which he said that to include the under-18s in the 2009 Bill would have involved a major change in the relationship between the civil courts and those under 18. Yet here we are, less than a year later, being asked to make just such a major change without any consultation of any kind in the mean time.
I suggest that the Government had their opportunity to include the under-18s in 2009. They did not take that opportunity for reasons which seemed good to them then and it is far too late for them to have a second bite at the cherry now. On that simple ground, I support the noble Baroness. But there is, of course, a wider ground on which I must touch. It was touched on earlier in the day and made memorable by the speech of the noble Lord, Lord Rooker, although I am not sure that I entirely agreed with his solution. The question is whether it can ever be right to include provisions such as these in the wash-up. I think we all agree that there may well be cases where the wash-up serves a very useful purpose. It may yet prove to have served a very useful purpose in relation to the constitutional reform Bill if Part 1 can be salvaged, as I hope that it will be. We are told that the wash-up has been around for 100 years, but things have changed since then. What has changed above all is the scale on which the wash-up is now used. The noble Lord, Lord Tebbit, touched on that point. In the old days, the wash-up covered perhaps one or two single-purpose Bills. Now it covers three or four multi-purpose Bills. In those circumstances, it simply does not work. I submit that it is a misuse of the whole process, which could easily degenerate into something a great deal worse.
The wash-up should never be taken for granted, as happily it has not been in relation to the constitutional reform Bill. I submit that we should reject it altogether in relation to the provisions on gang-related violence as they in effect—if not in name—are creating new criminal offences consisting of the breach of an injunction imposed by a civil court. That is especially worrying when the effect of these clauses will be to expose 14 year-olds to the possibility of serving up to three months’ detention in a young offender institution. These are both matters on which Cross-Benchers might have been expected to have strong views, and possibly even to have something helpful to offer, but they have not been able to do so because they are not consulted. They play no part in the wash-up. If this Bill is enacted, it will be said that it has been,
“ENACTED by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal”.
But the Cross-Benchers have not been consulted on these provisions. I suggest to the noble Lord that it is quite wrong at this stage that they should be included in the Bill.
The noble Baroness the Leader of the House said earlier that the wash-up does not necessarily involve the whole and every part of every Bill and that it is possible for it to leave parts of a Bill out. I suggest that it would be altogether suitable for Clauses 34 to 39 to be left out and that they should be brought back before us in the new Parliament.
My Lords, I am sure that I have the agreement of the House when I say that all of us wish to see a reduction in gang violence and gang-related violence, which makes the daily life of so many people such a misery. The police need to be freed up and given powers to deal immediately and effectively with gang incidents, which increasingly blight our towns and cities. Most of the people who attend this House do not have to live in parts of towns where this occurs, but it certainly causes misery for those where it does.
It is a sad fact that a significant number of gang members are under the age of 18. This is a real problem. I certainly have sympathy with those who do not wish to see us go down the road of criminalising children, but some young people do very wicked things.
These clauses give sanctions to civil courts, including youth custody—just mentioned by the noble and learned Lord—which were previously reserved for youth courts. The youth justice system should not be bypassed, but we also take the view that it is increasingly insufficient.
Today we shall not oppose these provisions because the Minister previously gave an assurance that they will be used only as a measure of last resort. We obviously hope that that undertaking will be stuck to, and, rather like the noble and learned Lord who referred to the increasing practice of using the civil courts as a route through which criminal penalties can be imposed, we would, if given the opportunity in government, wish to scrutinise this. We see it becoming a form of hybrid law that is not known to this country and is not desirable. We would wish to do something about that.
I understand that the Government also intend to test the provisions through pilot schemes. This is an important idea. The results need to be reported to Parliament before there is a wider rollout. If these pilots are not successful, it follows that the provisions should not be implemented countrywide. It is on that basis that we are willing to support the measures today.
My Lords, I shall be very brief. Perhaps I may say how much I support the contributions of my noble friend Lady Hamwee and the noble and learned Lord, Lord Lloyd of Berwick.
I find it difficult to understand why the Government are in such a hurry about this matter. This is not the first time that we have discussed it, particularly in relation to extending gang injunctions to under-18s. When that was first discussed under the Policing and Crime Bill last year, we raised objections, but we also said that we should review within three years the operation of gang injunctions for adults. Yet, hardly any time has passed before another provision has come from the Government in relation to those who are 14 or over.
The noble Baroness, Lady Neville-Jones, talked about getting an opportunity at some stage to scrutinise the route through the civil courts. If that is the case, perhaps I may ask her why she does not object to this matter now, for the simple reason that the measure that we agreed relating to adults has not yet had an opportunity to be put into operation. Why should we therefore be in a rush in relation to children and how they may be affected? I ask the Minister: what sort of research have the Government undertaken which brings them to the conclusion that the civil courts are the right way to take this matter forward?
Did the Government take any account of the briefing from the Standing Committee for Youth Justice? It said that it did not believe that the measure would be effective at addressing the root causes of problematic behaviour. Many young people involved in gangs often have limited choice as to whether to join them, and their parents are not aware of the implications of their involvement. The standing committee came to the conclusion, therefore, that it opposed the new provision to extend to those aged 14 and over the application of injunctions for gang-related violence.
I wish to put another point of view to which I ask the Minister to give some thought. There is a danger that by using such measures, we tend to criminalise our young people at a very young age. The implication of that criminal process in their adult life is very considerable. Has he ever considered the implications for many in our diverse communities? I share the concern that he expressed when he previously talked about stop and search. Here is another method by which we are criminalising gangs of young people. Perhaps we should be looking at alternative ways of dealing with this matter, as has been explained by the Standing Committee for Youth Justice. It would be very helpful if the Minister cited some evidence of why this provision is required given that the main provision for over-18s has not yet been implemented.
My Lords, I have some sympathy with the views of the noble and learned Lord, Lord Lloyd, and indeed some other speakers, about wash-up, but I have no intention of veering off-track into the minefield of trying to change the rules for wash-up. That would be foolhardy of me. We are where we are.
Gang injunctions for 14 to 17 year-olds are needed because, unfortunately, this age group has shown itself to be vulnerable to the temptations of the gang lifestyle and as violent as their older peers—unbelievably violent at times. The Home Office report Monitoring Data from the Tackling Gangs Action Programme, produced in May 2008, found that the average age for the first conviction of young gang members was 14. Briefing from the Metropolitan Police Service received last week shows that of the recorded “gang” flag-marked offences in London, 45 per cent of accused are under 16 years of age and 42 per cent are aged between 17 and 23. There is a clear operational need for these injunctions to apply to 14 to 17 year-olds as a tool to prevent these violent offences and to help the young people out of the gang lifestyle.
Secondly, under-18 gang injunctions are needed because injunctions work. During the debates on the Policing and Crime Act, Jackie Russell from the gang team in Birmingham wrote to the department about the use of Section 222 Local Government Act injunctions against over-18 gang members. In her letter she said:
“Injunctions were able to reduce serious harm offences by 15%, robbery by 12.5% and violent crime by 6%”.
We are being asked to create these powers by our operational colleagues—those who know best what is needed to manage these violent individuals. Detective Chief Superintendent Paul Richardson, head of the Matrix Unit in Merseyside, wrote to me on 15 June last year stating that the injunctions in the Policing and Crime Act must be applied to under-18s. His view was echoed by Maureen Noble, head of Manchester CDRP, and Councillor Jim Battle from Manchester City Council during their evidence before the Public Bill Committee on this Bill in another place.
We fully understand the need to protect the rights of young people who will be served with these injunctions. That is why we included a range of safeguards from the outset of the Bill, and we have strengthened these in response to debate in the other place. This point was raised by the noble Baroness, Lady Hamwee, the noble Lord, Lord Dholakia, and others. The safeguards include: engagement of the youth offending team, who are experienced in dealing with young people, at the earliest stage and throughout the process; a mechanism for punishing breach, aimed at removing the individual from the gang lifestyle—a point referred to by a couple of speakers—and stating in the Bill that detention can be used only when no other sentence is appropriate and that the judge must give his reasons in open court for imposing detention.
We also propose, as the noble Baroness, Lady Neville-Jones, has said, to pilot these injunctions in a single area to assess how they work and the impact that they have before taking a decision on national rollout. That is extremely important and will give us some data from which to work.
We are providing a new tool to police forces and local authorities to manage the violent young gang members whom they identify as a huge problem and whom they are struggling to manage. The recent tragic case in Victoria train station shows how relevant such a power is. I urge noble Lords to agree that Clauses 34 to 39 should stand part of the Bill.
My Lords, much as I would like to debate the aspects of wash-up, perhaps that is not for now: it is almost 8.50 pm and there is a lot more to get through today. I say to the noble and learned Lord, Lord Lloyd, who said that his colleagues were not consulted, that neither were mine.
I am glad that the noble Baroness, Lady Neville-Jones, is concerned about the development of what she called hybrid provisions—the merging of civil and criminal law. They are an extremely serious development, which goes far beyond this issue.
In view of the time, I will simply pick up on the words of the Minister when he talked about helping young people out of their lifestyle. It is the view of these Benches that criminalising children does not help them out of their lifestyle. The Standing Committee for Youth Justice, to which my noble friend referred, has no doubt told many of your Lordships about its concern that the Bill threatens children's safety, compromises their welfare and risks inappropriately criminalising them. The committee therefore opposes the Bill in so far as it affects children and young people in trouble with the law. We share that concern and oppose the clause standing part of the Bill.
Clauses 35 to 44 agreed.
Clause 45 : Offences relating to electronic communications devices in prison
Debate on whether Clause 45 should stand part of the Bill.
I have a small point on Clause 45. I wish to express regret that the Government did not take the opportunity to do something as regards passports, which the noble Lord, Lord West, knows I have an interest in. It would have been a good opportunity for the Government to require that passports of those persons serving custodial sentences be invalidated while they are serving their sentences. I have tabled Parliamentary Questions on the subject for some time.
At the moment, there is a danger that such passports could be misused by others in the criminal fraternity. Under the new electronic passport system, it should be perfectly possible and easy for a passport to be made invalid for the necessary period. Therefore, the requirement should be that the prison authorities report to the passport and immigration agency who they have in prison and, if that person is on the agency database as having a passport, that passport would then be invalidated until the person is released from custody. That is the only point I wish to make under Clause 45.
My Lords, although the noble Lord raises a very interesting issue, I do not believe that the substance of his query has any impact on the merits of the decision before us now. A number of safeguards are in place. Perhaps I could write to the noble Lord and let him know what they are. If he wants to look at a policy review, it would be better for him to write to the Home Secretary and the Secretary of State for Justice, setting out the issues that he has raised. Some protections are in place and it is not quite as easy as it may seem at first glance to use such passports. On that basis, I beg to move that Clause 45 stand part of the Bill.
Clause 45 agreed.
Clauses 46 to 55 agreed.
Clause 56 : Persons subject to control order: powers of search and seizure
Debate on whether Clause 56 should stand part of the Bill.
Having had a glance at the hour, I shall be very brief. I say at once that I do not intend to divide the House. The Conservatives have said that, if they win the election, they will carry out a review of control orders as part of a wider review of terrorist legislation. The noble Lord, Lord West, has said that the Government will do the same if they win the election. My simple question is: what conceivable purpose is there in amending the 2005 Act now to add to the sanctions which can be imposed on those subject to control orders?
The police and the security services have said that they need the power to search those subject to control orders when moving them from one area to another—or relocating them, as it is called. Everybody agrees that relocating is a barbarous process anyway—when I say everybody, I have in mind in particular Justice, Liberty, the Joint Committee on Human Rights and the House of Commons Home Affairs Committee. In any event, the police have done without the power to search since July 2009, and the sky has not fallen in. I do not see how anybody can seriously argue that by leaving out Clause 56 we will be putting the public at risk. I hope that we will not hear those words from the noble Lord, Lord West, when he replies. The Government have not made out a case for Clause 56, unless the police are always to have whatever they ask for. The Government have not made out a case for amending the 2005 Act now, just prior to the election.
My Lords, I support the question that the clause should not stand part of the Bill. I say immediately that I am directly involved in such cases from time to time as counsel. It came as a great shock to me that we introduced the idea of relocation. It is a form of internal exile. The only place where I had ever come across it before was when I went to Chile for the first election after the end of Pinochet and found that many people did not have their vote because they had been moved internally and forced to live away from their places of origin. The idea that we are doing that to British citizens in the United Kingdom is absolutely shocking. I agree with the noble and learned Lord, Lord Lloyd: the business of searching has not been necessary in any of the cases in which I have been involved. It really is unnecessary. The requirement being sought by the police derived from one particular case. I urge the Front Bench to reconsider. It seems to me, as the noble and learned Lord said, that it is as if the police have only to ask for something and immediately the Government jump over that hurdle. This is not needed. I say that with some force as someone acting in such cases.
I add the support of those on these Benches to what the noble and learned Lord said. We have made very clear our opposition to control orders. Like him, we look forward to a very speedy review and radical alteration of the system. We continue to oppose control orders; we would not like to be seen to be saying anything that might be considered to be in support of them tonight.
My Lords, the recent judgment confirms that, at present, the police have no enforceable power to undertake a search in the circumstance of someone wishing to move to another area from where he has been moved. Where it is not appropriate to refuse the controlled person permission for the journey, the options left are, first, to allow him to be outside his boundary without an escort. We have had the debate about control orders—and, yes, we want to look at them in future—but the whole reason for them is that these people are seen as a great risk. That option is unacceptable. Alternatively, we can allow the journey on an escorted basis, but relying on his co-operation to agree to a search. Of course, he could be carrying a mobile phone or some other method of making contact with someone—a whole raft of means. That is part of the reason for those controls being put on him. Or we could require him to travel in the back of a police van, if he refuses to agree to a search. That is hardly an ideal solution. Alternative police search powers, such as those under PACE or the Terrorism Act, are not generally appropriate in this case.
While we and the police are doing our best to manage these problems on an operational basis, the need for a legislative solution is clear, and the noble Lord, Lord Carlile, endorsed taking early action to add such a power in his fifth report on control orders, which was published on 1 February. With the best will in the world, if one is looking for something to happen, whoever is in government next time round, nothing would be coming in until December or beyond. That is the realistic timescale.
In addition, the powers contained in subsection (2) of this clause provide powers of seizure and retention for use as evidence in a trial or for forensic examination of items that have been removed from a controlled person’s premises during a police search when the police subsequently have reasonable grounds to believe it is or contains evidence in relation to an offence. On that basis, Clause 56 should stand part of the Bill.
Clause 56 agreed.
3: After Clause 56, insert the following new Clause—
“Databases: scrutiny of entries
(1) No suspicious activity report (SAR) on a person (P) may be retained on a database operated by a law enforcement agency without having been subject to independent scrutiny under subsection (2).
(2) The Secretary of State shall by regulations establish a system for the independent scrutiny of SARs with a view to ensuring—
(a) the accuracy and reliability of information contained in SARs, and(b) the protection of P’s rights under the European Convention of Human Rights and other relevant international Conventions.”
This amendment derives from the report into money laundering and the financing of terrorism that was made by Sub-Committee F and published last year. I was privileged to spend three years as a member of that committee. I must explain, very briefly, of course, what it is all about because we discovered it only when we made the study. The Minister and I have corresponded and talked about it frequently, and I have had answers to a number of Written Questions that have elucidated the case for it.
In order to monitor and prevent money laundering, if the regulated sector, which basically means banks, lawyers, building societies, accountants, finance companies and so on—there is a whole list of them—believes that somebody has been engaged in money laundering, it is required to make a suspicious activity report, commonly known as an SAR. This report is made to the Serious Organised Crime Agency, commonly known as SOCA, which was previously headed by Sir Stephen Lander, the former director-general of the Security Service MI5. It is there to deal with serious and organised crime.
In our inquiries, we discovered that this process of suspicious activity reports has no de minimis condition. A very large number of reports are made. In March last year, there were already 1.5 million reports, and there are now getting on to 2 million. Those who are the subject of such a report are put on to a database known as ELMER. We inquired into it, and found that that is not an acronym. We never discovered what it is, and if the Minister were able to tell us that would advance our knowledge. You get put on this database of suspects. You are not told you are on it, and you will be on it for up to 12 years. It is particularly disturbing that it is not only the regulated sector as it is at present that can put somebody on it, but an anonymous denunciation can result in somebody being put on it. That is quite astonishing and has pretty nasty Stasi overtones.
In our report, we made two recommendations:
“The FATF Recommendations do not require information on the ELMER database to be made available other than in connection with serious crimes. Access for other purposes should be on request to SOCA”.
In fact, there is widespread, direct access to this database. The noble Lord, Lord West, has been kind enough to answer questions giving examples of the sort of people who have access. It even goes down to the Neath Port Talbot County Borough Council, which apparently uses the database to check on consumer behaviour. In my view, this is something of an outrage. The database should be secret. People should be assessed before they are put on to it. My amendment would ensure that that happened. It says:
“(1) No suspicious activity report … on a person … may be retained on a database operated by a law enforcement agency without having been subject to independent scrutiny under subsection (2).
(2) The Secretary of State shall by regulations establish a system for the independent scrutiny of SARs with a view to ensuring—
(a) the accuracy and reliability of information contained in SARs, and
(b) the protection of”,
“rights under the European Convention of Human Rights and other relevant international Conventions”.
The second recommendation of the Select Committee report from July last year to which I wish to refer was:
“The Information Commissioner should review and report on the operation and use of the ELMER database, and should consider in particular whether the rules for the retention of data are compatible with the jurisprudence of the European Court of Human Rights”.
As far as I am aware, the Whitehall process is grinding on and nothing has emerged. In my view and, I think, the view of some of my colleagues on the committee, this is a serious situation, which needs much more action than appears to have taken place. Therefore, I should like to see in this Bill, in which it fits perfectly well, an appropriate protection to make sure that we do not have a secret database of suspects about which people know all too little. I beg to move.
My Lords, I was a member of Sub-Committee F with the noble Lord, Lord Marlesford, whose amendment I support. I first came across the issue of money laundering and SARs when I was a non-executive director of a small blue-collar building society in the West Midlands—we were about 23rd or 24th on the list in size. I was head of the audit and compliance committee. We used to make 400 or 500 SARs a year. To my knowledge, not one was ever for more than £500; they were mostly for sums of about £150. It seemed to me that an awful lot of time and effort was being used up in making these reports and there was never any response from NCIS, the predecessor of SOCA, about what was happening. When I had the temerity to write and ask what was happening to the reports, I was told very firmly to mind my own business. I then wrote to ask what had happened to the reports. I was again told to mind my own business. I think that things have improved now, but that was the attitude and approach then.
I want to underline what my noble friend has said. The scale is truly staggering. There are 210,000 reports a year. Nearly every month there are 15,000 and, in a big month, there are 30,000. The issue is not just the number of reports; the list of people to whom the information is made available is quite extraordinary. Why should the Post Office and Royal Mail be able to get hold of it? Why should the National Ports Analysis Centre need this information? It beats me, I am afraid.
This information is contained in the SOCA annual report, which does not attempt to conceal any of this. However, a vast amount of information is being circulated about citizens, most of whom will not know that they are on the database and will have no chance of having the database corrected. They may just have been going about their business when they were the victim of an anonymous, vindictive tip-off, as my noble friend said.
Just to make it absolutely clear, the report said:
“On receipt of a SAR no steps are taken to confirm whether or not the suspicion on which it was based is well founded, and SOCA believes it would not be practicable or useful to do so”.
Well, that surprises me. Secondly, it states:
“An individual who wishes to see whether the ELMER databases includes entries relating to him, or to transactions or activities in which he has been involved, is unlikely to succeed. SOCA is not subject to the Freedom of Information Act ... Information may be sought under section 7 of the Data Protection Act 1998, but it is likely that the exemptions relating to national security and crime will apply”.
I think that we have a black hole into which information goes, is stored and is used for reasons we know not and by agencies we know not. My noble friend is doing a valuable service by proposing this amendment.
I agree with the comments made by my noble friend. The points he raised are valuable and important. Suspicious activity reports are based on the suspicions of those operating in the regulated sector. The question that has been asked is what happens once those reports are received. As has just been mentioned, the Government, in various replies, have said that SOCA does not take steps to establish whether an unknown or anonymous reporter’s suspicions are unfounded before the information is recorded on this famous ELMER database. However, they also said that if a SAR had been submitted maliciously, this fact would become apparent in the course of an investigation when the information was cross-checked with other forms of intelligence. One has to ask whether that is a foolproof way of discovering whether such information has any reality in it. Each SAR, whether or not confirmed as having any real base, is assigned a deletion date of 10 years after receipt and is automatically deleted unless it has been amended or updated. The deletion date thereafter is set to a further six years.
The views of the EU Select Committee have been mentioned. The Information Commissioner has also interested himself in this matter. He has said that if there are SARs meeting a particular threshold level rather than based on hard evidence of criminal activity, the prolonged retention of those records would in his view be inappropriate and disproportionate. The EU committee said:
“Although SARs are not kept indefinitely, the fact that they are routinely retained for ten years on a database to which there is wide access is a matter of concern to us, especially in those cases where it can be shown that the initial suspicion was unfounded”
Both speakers have referred to the widespread access that can be had to this information. It is extraordinarily important that, if people are to have access, some effort should be undertaken to establish whether the suspicion is founded or not, which is quite apart from the issue of how widespread that access should be.
I understand that there is,
“a procedure for earlier deletion of individual SARs where all necessary activity relating to that SAR has been undertaken”.
In responding, it would be helpful if the Minister could expand on this and say whether it includes removing SARs if subsequent investigation shows that they were unfounded. That is a key point.
I also understand that the Information Commissioner will review the handling of SARs, which is extremely welcome. Will the Minister say when this review will start and when it will be completed? If this information is known to him, it would be helpful for the House to have this information. This independent scrutiny certainly is welcome. This serious issue deserves much more consideration than we will be able to give it tonight, given the constraints of time. It probably makes sense to wait until the outcome of the Information Commissioner’s review is known, although it is important to know the timescale. If a Conservative Government are returned to office, these are issues to which they will return.
My Lords, I say simply from these Benches that we have considerable sympathy with the concerns that underlie the amendment and I look forward to having an opportunity to look at this matter in more detail and at greater length than we will be able to do tonight. I recall the report that has given rise to this amendment, but addressing those concerns is perhaps more complex than an eight-line amendment might suggest.
My Lords, the noble Lord, Lord Marlesford, referred to acronyms such as ELMER. I seem to have been haunted by acronyms all my life. Some 44 years ago in my first ship, I recall reading a menu that had on it RBG, which I discovered was “rich brown gravy”, and TYC, which was “thick yellow custard”. I was thrown by HITS, which was “herrings in tomato sauce”. I am afraid that I do not know what ELMER stands for, but I will do my best to find out.
The noble Lord has raised an important issue. We recognise the need for appropriate scrutiny of the SARs database. It is already independently scrutinised by the SARs regime committee, which includes private sector and government representatives, and in a sense by Parliament in the form of regular Parliamentary Questions. The noble Lord and I have been in almost continuous dialogue on this issue. We do not think that it would be practical to scrutinise individually every single suspicious activity report before it can be placed on the database, because that would create a huge layer of bureaucracy and a vast administrative burden. As the noble Lord, Lord Hodgson, said, over 200,000 SARs a year are processed.
The noble Baroness, Lady Neville-Jones, touched on the recommendation of the European Union Committee of this House that the Information Commissioner should review the operation and use of the SARs database. I am not sure when the review will start, but it has to be completed by December of this year. It would be precipitous to amend legislation before the Information Commissioner’s report is published, as I am sure that he will look at all the aspects, including removal and how long material should be kept on the database.
On the basis that independent scrutiny of each and every SAR would be impractical and in anticipation of the Information Commissioner’s report, I ask the noble Lord to withdraw his amendment.
I thank the Minister for that reply. I think that I have at least stimulated a little interest in the matter. Recently there has been a further development. HMRC has decided that all bookkeepers of a small business or even a sports club, however small a scale they operate on, should become part of the regulated sector and register with HMRC with a view to it being able to make SARs. The danger is that this is a form of sweeping in any sort of information simply for the purpose of having it. Let me just give an idea of the scale of this: it could involve some 1.7 million small businesses employing fewer than five people and the 2 million businesses that employ fewer than 10. It has been made clear in Parliamentary Answers that there is no de minimis exemption, but in practice, although the requirement to register has been in place for two years, small business bookkeepers have not done so. Only 12,000 of those who might have had to do so have actually put themselves on the database, presumably because one deterrent is that any wretched bookkeeper, however small scale, has to pay £95 a year for the pleasure of having registered.
I raised this issue with the noble Lord, Lord Mandelson, the Secretary of State for Business and everything else. He assured me that he thought that this sounded like a good candidate for the Better Regulation Task Force. I hope that he has referred the issue to that unit so that at least this nonsense will not be taken any further. In the meanwhile, I am grateful to noble Lords for listening at this late hour and I beg leave to withdraw the amendment.
Amendment 3 withdrawn.
Clauses 57 to 60 agreed.
Schedules 1 and 2 agreed.
Bill reported without amendments. Report and Third Reading agreed without debate.
My Lords, I want to put on record my thanks to all the Members of the House who have taken part in the debates today. I am aware of the pressures of wash-up, but I have no doubt that the Bill will help to protect the public and provide justice for the victims of crime.
Bill passed and returned to the Commons.