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Coroners and Justice Bill: Clause 96 — Retention and destruction of samples etc: England and Wales

[Spoken by Alan Campbell on 12/11/2009]

The amendments were supported by the Government in the other place and are the result of listening to the debates that have taken place in this House and in Committees of both Houses, including the Joint Committee on Human Rights and the Delegated Powers and Regulatory Reform Committee. Over the summer, we considered those views carefully, and the responses received to the Home Office consultation document "Keeping the Right People on the DNA Database" that was issued in May. We accept the concerns raised by the Committees and other stakeholders about making the necessary changes to the law by means of an enabling power.

The issue of retaining DNA and fingerprints from those arrested but not convicted is an important topic that deserves the full attention of everyone involved in the legislative process. We judge that the approach taken in the Bill gave us a sensible opportunity to demonstrate that we were committed to implementing the S and Marper judgment, to consulting swiftly but thoroughly on the detail of the policy and to giving Parliament an opportunity to approve the policy through the affirmative resolution procedure.

Given the strength of feeling on this issue, and the importance of ensuring that we move forward with consensus, we accept the view that the issue would be dealt with more appropriately in primary legislation. We therefore decided to invite Parliament to remove clauses 96 to 98 from the Bill. As soon as parliamentary time allows, we will bring forward appropriate measures in primary legislation, as set out by my right hon. Friend the Home Secretary in his written ministerial statement yesterday. That approach will allow full debate and scrutiny of the proposals in both Houses. I therefore ask the House to agree with the Lords in their amendments.

Written Ministerial Statements — Home Department: DNA and Fingerprint Retention

[Spoken by Alan Johnson on 11/11/2009]

I am announcing today proposals on a new retention framework for DNA and fingerprints to be introduced though primary legislation as soon as parliamentary time allows. I am also today publishing on the Home Office website and placing in the Library of the House the responses to the consultation exercise on earlier proposals published in May 2009. I will also be placing on the Home Office website at: www.homeoffice.gov.uk/documents/cons-2009-dna-database/ a review of the research carried out in this area.

The UK has been at the forefront of using DNA in the detection of crime for many years, and it has played a key role in the conviction of numerous individuals for the most serious of crimes over the years; some 832 matches to the national DNA database were made in cases of murder, manslaughter or rape in 2008-09 alone. The Government are determined that DNA and fingerprints should continue to play a key role in public protection and the prevention and detection of crime.

In December 2008 the European Court of Human Rights (ECHR) judgment in the case of S and Marper found that the blanket retention of DNA profiles and fingerprints indefinitely where there had been no conviction represented a breach of article 8 of the European convention on human rights.

The Government undertook to give effect to the judgment and to amend domestic law accordingly. We published proposals in May 2009 in a consultation paper "Keeping the Right People on the DNA Database". The consultation period ended in August and some 500 responses, the majority from individuals, were received. We have considered those responses carefully before bringing forward the proposals below.

The retention of biometric data remain a sensitive issue. Such data help in the detection and conviction of criminals and may also be used for identification purposes outside the criminal justice context. There is less argument about the retention of biometric information in respect of those who have been convicted of a criminal offence than there is in respect of those who have been arrested and had their DNA and fingerprints taken but were not subsequently cautioned or convicted. Achieving the appropriate balance between privacy and public protection, in a way which satisfies the ECHR judgment, has been our objective.

Since the publication of the consultation paper we have sought to further the evidence base through additional research. The research lends support to the public protection case for retaining the DNA of those who have been arrested for but not convicted of criminal offences. It suggests that we can go some way to reduce the retention periods originally proposed without compromising public protection, indicating that the chance of re-arrest, following an arrest with no further action, of individuals with no previous convictions remains higher than the chance of arrest in the general population for six years following the initial arrest.

DNA Samples-The ECHR judgment highlighted the particular sensitivity of retaining DNA samples as distinct from the profiles taken from them that are held on the national DNA database (NDNAD). Although not required by the judgment, we continue to believe that there is scope for destroying samples not only of those arrested but not convicted and but also of those who have been convicted. We propose that samples should not be retained beyond a six-month maximum, which is needed to ensure satisfactory loading of the profile taken from the sample onto the NDNAD. We do, however, propose to bring forward a power for the police to take a further sample should the defence of an accused person challenge the authenticity of the results of the analysis of the destroyed sample.

Convicted Adults-We propose the indefinite retention of DNA profiles of convicted adults in line with the consultation paper. This would also apply to people who are given a caution, warning or reprimand.

Unconvicted Adults-In setting a proportionate retention period for the DNA profiles of unconvicted adults which does not compromise public protection, we have taken account of the improved evidence base and responses to the proposals in the original consultation paper. We propose a six-year retention period for the profiles of unconvicted adults, irrespective of the seriousness of the crime for which they were arrested. Although the ECHR suggested that the seriousness of the alleged offence should be a factor in determining what length of retention was proportionate, the best available evidence indicates that the type of offence a person is first arrested for is not a good indicator of the seriousness of offence he might subsequently be arrested for or convicted of in future. As the retention of the DNA of innocent people is not punitive, but rather a measure to facilitate the detection of future offences, the Government therefore conclude it is appropriate to have a single retention period.

Juveniles-While the evidence base does not support shorter retention periods for juveniles, we have, in setting a proportionate retention regime for juveniles, whether convicted or unconvicted, given weight to the comments in the ECHR judgment on juveniles, the United Nations convention on the rights of the child and the responses to the consultation paper.

Convicted Juveniles - We propose that the DNA profiles of convicted juveniles should be retained indefinitely for serious offences, and for five years for the first minor offence, with indefinite retention for a second conviction. This recognises that for many young people involvement in crime in their teenage years is often an isolated and minor incident. However, we also recognise that, for some young people, involvement in crime in their teenage years is a strong indicator of risk of further criminal activity into adulthood. We believe, therefore, that a limited retention period for a single conviction, with indefinite retention in the case of any further conviction, strikes the appropriate balance.

Unconvicted Juveniles - We propose that, where 16 and 17-year-olds are arrested for but not subsequently convicted of a serious offence, their DNA profile would be retained for six years (as for adults), taking account of the ages at which peak offending occurs. For all other juveniles, we propose a three-year retention period for DNA of those who have been arrested but not convicted whatever the offence for which they were arrested, and at whatever pre-18 age they were arrested at. This corrects a possible anomaly with the original proposal, identified by consultation respondents, that an individual arrested at age 10 might have had their DNA retained for eight years, whereas someone arrested at age 17 might have had their DNA retained for only year. It also provides an appropriately more lenient approach to juveniles who are arrested but not convicted, compared with those who do receive a conviction.

Fingerprints (Adult and Juveniles)- We propose that, in all cases, the same regime should apply to the retention of fingerprints as for DNA profiles. The ECHR judgment implied that fingerprints were a lesser intrusion of privacy, but we are not aware of evidence that suggests we should propose a different retention policy.

Additional Powers-In line with our aim to ensure that the right people are on the database our proposals in this area will, as we set out in the May consultation document, include giving the police the power to take fingerprints and non-intimate samples without consent from UK nationals or residents convicted of specified serious offences abroad at any time; to remove the existing statutory bar (in the Criminal Evidence (Amendment) Act 1997) on taking non-intimate samples from persons convicted of serious offences before 10 April 1995 who have been released from prison; and to give the police the power to take non-intimate samples and fingerprints post-arrest where the initial sample has proved inadequate for analysis even though a person is no longer in police detention.

Destruction of DNA and fingerprints profiles before the end of retention period-Currently, chief officers may consider the exceptional destruction of DNA and fingerprints under the exceptional case procedure. We propose to introduce greater transparency by setting out in statute more clearly defined criteria where deletion would be appropriate. This should bring greater clarity to the public and also the police.

Governance-It is important that, in addition to putting in place the proportionate regime for the retention of DNA and fingerprints set out above, we are also able to promote public confidence in the operation of that regime. We therefore propose to strengthen governance arrangements by placing the national DNA database strategy board on a statutory footing and by introducing to it a wider independent membership.

Terrorism and National Security-Material taken under any regime (including the Terrorism Act 2000) would be able to be retained beyond the six-year point where there is a case for doing so on the basis of a case-by-case review on national security grounds. This would require a review by a senior police officer every two years-although data would be deleted if it became clear between reviews that its retention would no longer be necessary. The policy for juveniles would be similar but would take account of the differential treatment proposed for juveniles more generally.

Police: DNA Database — Question

[Spoken by Alan West on 15/10/2009]

My Lords, Keeping the Right People on the DNA Database, the paper that we put out for consultation, lists our plans. One of the issues is to do with the destruction of profiles. That has been rather complex and difficult, and we will have to lay out very clearly the criteria for destruction and exactly how it is to be done. In the past that has not been as clear and good as it should be; it is something that we will have to rectify.

Written Answers — House of Lords: DNA Database

[Spoken by Alan West on 05/10/2009]

The consultation paper Keeping the Right People on the DNA Database published on 7 May 2009 sets out the retention periods proposed by the Government for consideration in compliance with the judgment of the European Court of Human Rights in the case of S and Marker. The research within that report indicates the propensity of some of those arrested and not convicted to offend in the future.

We have concluded that a retention period of six years for most offences is reasonable with a longer period of 12 years for serious sexual, violent or terrorist-related offences. As the consultation paper indicates, we believe that a longer retention period for the serious offences recognises the serious consequences of such offences and the implications of a missed detection.

Written Answers — Home Department: DNA: Databases

[Spoken by Alan Campbell on 20/07/2009]

Fingerprints records are currently retained indefinitely on IDENT1 (the national fingerprint database) for persons arrested for a recordable offence, whether or not subject to a conviction or acquittal or no further action. Proposals on future retention policy are set out in the public consultation paper 'Keeping the right people on the DNA Database' published on 7 May 2009.

Surveillance (Constitution Committee Report): Motion to Take Note

[Spoken by Willy Bach on 19/06/2009]

My Lords, I start by warmly thanking the noble Baroness, Lady D'Souza, for her moving and personal tribute to Lord Dahrendorf. It was clearly a tribute to one of her noble friends in every sense. It was a very moving tribute and we are grateful to her for coming in to this debate. As someone who did not know him as well as the noble Baroness did but who respected him from afar as a fellow Member of this House, I have two points to make. First, what an honour it was for the United Kingdom that he should choose to come here and become a citizen of this country and then a Member of this House. Secondly, in a sense, the debate in which we are indulging today, which involves these difficult and complex questions of liberty of the individual and security of the state, and the interrelationship between the two, is perhaps an appropriate one for the moving and personal tribute given by the noble Baroness. I thank her on behalf of the House.

I also thank the noble Lord, Lord Goodlad, for introducing the debate and all noble Lords who have spoken in it. I thank him not just for introducing the debate but for having chaired the committee along with the late Lord Home while it discussed these important topics. The noble Lord and his committee have made an important contribution to the debate on surveillance and the report sets out clearly the issues facing us all. The Government responded in May and I have just seen the constructive analysis published by the committee this month.

As I said, the issues are very complex. The Government have to strike a balance, as all noble Lords have said, between the right of the public to their privacy, their right to the more effective delivery of public services and their right to protection from crime and terrorism. I want to make it clear that the Government's role is to safeguard our citizens from those who would seek to do us harm while ensuring that our rights to privacy and freedom are protected. Broadly speaking, the noble Lord's committee, this debate and the recent debates in this House—I have in mind the one called by the noble Earl, Lord Northesk—have sought to consider the question of the role of the state in protecting civil liberties and freedom. Our country has a proud tradition of individual freedom. This involves freedom from unjustified interference by the state. It also includes freedom from interference by those who would do us harm.

We believe that as a Government, we have put in place a strong legislative framework to protect the rights of individuals. This includes the Human Rights Act which obliges public authorities to comply with European convention rights, including the right to respect for private life. That right is always balanced against collective interests, such as national security and the prevention of crime. The noble Baroness, Lady Manningham-Buller, reminded us what the convention says in relation to the state's role in that, too. It is right that we should constantly satisfy ourselves that we have got that balance correct.

For example, the balance needs to be right in a rapidly moving world. Developments in technology are especially rapid, providing greater opportunities and benefits to us as individuals. But those who would do us harm can also take advantage of the developments. This creates an ever-increasing challenge as we seek to safeguard and protect the public. That is a challenge that the Government and their enforcement agencies are duty bound to respond to. The use of data is essential to delivering efficient, effective and joined-up public services. Recently, communications data, which are the who, the when and the where of communications—not the content—have been key in securing convictions in the Rhys Jones and Hannah Foster murder cases and to bring to justice those responsible for the suicide terror attack at Glasgow Airport. Such data also helped to uncover a global online paedophile network which has so far led to 50 arrests in the United Kingdom.

DNA techniques have helped bring thousands of serious offenders to justice, helping police solve around 1,000 rapes and murders in 2006-07. More than 18 million employment checks have stopped over 80,000 unsuitable people working with children and vulnerable adults in the past four years alone. Focused targeting of dangerous individuals has helped us to pre-empt many attacks and bring serious criminals and terrorists to justice. Indeed, if these opportunities were ignored or not put to their full benefit, it is not just your Lordships who would criticise the Government, but the general public in their millions.

The Government will always take a proportionate view of what needs to be done to protect the public and respect individual privacy and we will need to be flexible in our approach if circumstances require it. The debate about the new world we live in—the 21st century as the noble Baroness, Lady Miller, put it—and respect for privacy is a central part of our approach to security. Being open about this is also why we have set out a principled approach to the use of information in preventing crime and terrorist acts. In reviewing existing policies and processes, the Government will seek to ensure that due consideration is given to the following key principles at all times.

First, are robust safeguards in place to protect information and individual liberties? Secondly, are our plans and actions proportionate to the damage and the threat they are seeking to prevent? Thirdly, are we being as transparent as possible? Fourthly, are citizens being given the right amount of choice? Those four principles underpin our approach to privacy and security: proportionality, safeguarding, transparency and, perhaps above all, common sense. Applying the common-sense test throughout, we need to make sure that policies and processes are proportionate and balance the respect for privacy with the potential harm. We need to ensure that robust safeguards are in place. We will be as open and transparent as possible with the public about what we do and why we do it.

As part of the Government's commitment to proportionality and necessity, we have made several announcements recently. I make no apologies for consulting the public on these vital issues and referring the committee to the consultations in our response. On DNA for example, we have set out clear proposals and are asking for views on them as one part of the policy-making process. That must be right. We would certainly be criticised by noble Lords if we pre-empted the conclusions of those consultations.

Let me turn to some of the large topics raised. I apologise in advance for not dealing with all of them. On DNA, which is a very important topic, as the House knows well, the European Court of Human Rights found on 4 December last year in the case of S and Marper a violation under Article 8 because of the "blanket and indiscriminate" retention policy for DNA and fingerprints. However, the court also indicated that it agrees with the Government that the retention of fingerprint and DNA information pursues the legitimate purpose of the detection and therefore prevention of crime, and recognised the need for,

"an approach which discriminated between different kinds of case and for the application of strictly defined storage periods for data".

We in this country have long recognised the importance of DNA as an investigative tool in helping to detect offenders and bring them to justice and, as important, if not more important, in helping to eliminate the innocent from inquiries. We know from the research that between March 2001 and 31 December 2005, there were approximately 200,000 DNA profiles on the National DNA Database, which would previously have had to be removed, before legislation was passed in 2001, because the person was acquitted or charges dropped. The startling fact is that of those 200,000 profiles that applied to those arrested but not convicted, approximately 8,500 profiles, from some 6,290 individuals, have been linked with crime scene profiles involving nearly 14,000 offences. Those are offences of all kinds, but they include 114 murders, 55 attempted murders, 116 rapes, 68 sexual offences, 119 aggravated burglaries and 127 supply of controlled drugs offences.

I suggest to the House that that is a startling fact and one that we cannot forget in the arguments about DNA. We, of course, fully accept the judgment of the European Court and the need to implement the judgment in open and public debate. That is why we published our proposals in a public consultation document on 7 May. I have been asked when we will complete that consultation. We aim to publish the summary of responses to that paper in September of this year and to consult on draft regulations to be laid before the House towards the end of the year.

That document, Keeping the Right People on the DNA Database, sets out a statutory framework aimed at striking the right balance in this difficult area. To achieve that important balance, we have made proposals in a number of key areas in which noble Lords have been interested. The noble Lord, Lord Pannick, in particular, asked me some questions about them. Among those proposals are, first, that all samples, whether from people who are arrested and not convicted or convicted, will be destroyed. Secondly, profiles for adults arrested and not convicted will be retained for six years, and for those arrested for a violent, sexual or terrorist-related offence for 12 years. Thirdly, we propose specific arrangements for juveniles to delete profiles and fingerprints on their reaching 18 years old, provided that they have not been involved in more than one offence.

Your Lordships will be aware that at paragraph 467 the Select Committee report recommended the replacement of the existing statutory framework and the provision of regulatory oversight of the national DNA database. On the statutory framework, we have submitted proposals to replace it and, indeed, to go further. Beyond what I have already outlined, we propose to place in regulations the criteria for the person to apply for the deletion of DNA data ahead of the expiry of the six or 12-year period. We are also proposing to put in place an independent monitoring and scrutiny process, of the applications of the regulations and enhance the independent membership and accountability, of the national DNA database strategy board. We hope that those measures will achieve the same aim as the recommendations of the committee on this important area of policy.

The noble Baroness, Lady O'Cathain, talked about a universal database. Let me reply in this way. We acknowledge that of course there is support in some parts of the public for a universal database, but there are similarly strong objections to it. It is a subject that requires much wider public debate, not least to consider the ethical and practical issues involved. We also want to consider the resource implications. We have no plans to introduce a universal database.

The noble Lord, Lord Pannick, asked a series of questions. If he will forgive me, I shall write a letter to him, which of course will go to all Members who are here, dealing in some more detail with his questions. In general terms, the figures that I have specifically concentrated on about the DNA of those who were arrested but not convicted, and the fact that the profiles linked so closely to some really serious offences in the following few years is, in my view, an important answer to the noble Lord. Research has also been carried out by the Jill Dando Institute which suggests that those who are arrested and not convicted have a propensity to offend that is similar to those who are arrested and convicted but who have not been given a custodial sentence. I refer the noble Lord to that research, but I would take up too much of the limited time I have left if I were to attempt to answer him any further. Also, I have not forgotten his last question about the chief constable or some judicial authority.

We believe that CCTV is a powerful crime-fighting tool. The noble Lord, Lord Henley, gave the figure of 3 per cent for the number of extra convictions. What he did not mention was the crime it deters. There is no doubt in my mind that CCTV deters crime. If I may say so, if you ask anyone outside—the general population sometimes have considerable wisdom—they will concur with the general suggestion that CCTV is indeed a powerful tool, and that they are grateful that widespread CCTV exists. Police operational experience and various research shows that it deters and detects crime and helps to secure convictions. What seems to have been slightly dismissed in the argument today is that it also reduces fear of crime, which I would have thought is pretty important to this House, as well as to the rest of the country. In case there is any doubt about it, we remain committed to the use of CCTV in helping to make communities feel safer.

My noble friend Lord Peston raised interesting questions about CCTV and specifically asked what is happening to be independent inquiry. The National Policing Improvement Agency, will be disseminating the Campbell collaboration review, to police and key stakeholders later this summer. The review will be made publicly available by being placed on the internet.

Moving on to RIPA, I was most interested in what the noble Baroness, Lady Manningham-Buller, had to say about that. Our public consultation seeks to explain and obtain views on the public authorities which have been permitted by Parliament to authorise key covert investigatory techniques under RIPA. We are seeking the public's views on questions such as which public authorities should be able to authorise investigatory techniques, such as covert surveillance in public places; when and why such techniques should be used; whether the rank of authorising officers in local authorities should be raised to senior executive; and whether elected councillors should also play a role in overseeing any use of covert techniques by local authorities.

There were a number of interesting comments from noble Lords in this debate, several of which centred on the role of local government as regards RIPA. As the noble Baroness, Lady Miller, reminded us, RIPA did not create a new power to enable local authorities to carry out covert surveillance. It established a regulatory framework to ensure that the powers were used appropriately and that proper consideration was given to human rights. Of course, there are examples of those powers being used inappropriately. However, I say to my noble and learned friend Lord Morris of Aberavon, that the example he gave of a local authority using RIPA against a Traveller who defrauded an elderly householder by pretending to do much more work than he had done did not seem to be the best example that could be chosen of local government snooping. One would naturally think that the elderly householder who was being defrauded was the victim of a serious offence and someone the courts would seek to protect by imposing a long prison sentence. We have to make sure we get the balance right. As my right honourable friend Jacqui Smith said in her speech in December, this power has been misused. The importance of the inquiry that we are entering into is to make sure that it is not misused in future.

A lot was asked about the Information Commissioner. Many important points were made about that role, not least by the noble Baroness, Lady Miller. I think the House will want to thank the Information Commissioner, who is about to retire, and will be pleased that he was honoured in the recent Queen's Birthday Honours List. There are some important points around the Information Commissioner's role, which I do not have time to go into during this reply. The noble Baroness will know well that a Bill is going through this House to make available to the commissioner powers to assess central government departments' and public authorities' compliance with the Data Protection Act 1998; to impose a deadline and location for providing information relating to investigations; and to require any person where a warrant is being served to provide any information required to determine compliance with the Data Protection Act. We are also proposing to commence the provision made in the Criminal Justice and Immigration Act 2008—some of us will have happy memories of it—to impose civil monetary penalties on data controllers for deliberate or reckless loss of data.

I think I have reached the end of the time I should take in troubling your Lordships' House. If there are matters that I have not touched on, I shall write to the noble Lord, Lord Goodlad, and distribute the letter. This has been an excellent debate on an excellent report, and the Government thank the noble Lord and his committee. I have done my best in the few minutes I have had to try to show that the Government do, and always will, attempt to take a principled and proportionate view of what needs to be done to protect the public and respect individual privacy. We must never be complacent, and where change is required, we will make it, but I strongly believe that we do not live in a surveillance society and that this Government are determined to make sure that we never do.

Policing and Crime Bill: Second Reading

[Spoken by Alan West on 03/06/2009]

My Lords, the Home Office and its partners are confronted with a rapidly changing world with increasing demands for a more efficient, more publicly accountable and more effective response to crime and disorder, all the way from our local streets to the regional and the international level. Inevitably, that leads to a Policing and Crime Bill with wide-ranging measures. For that I make no apologies.

Facing up to those challenges means helping police forces to improve their leadership, strengthen their ability to collaborate with each other and yet be more accountable to the local public whom they serve. It also means providing them and their partners with a framework that will help them gather the evidence against criminals while ensuring that the rights of individuals and society are properly respected, and it means providing them with the right tools to tackle effectively the fresh challenges confronting them on our streets today, from low-level alcohol-fuelled disorder to serious gang-related violence.

The world is changing, and crime and fighting crime is no different. We must keep pace with those changes. That means, for example, changes to ensure that all criminals, often serious criminals, can be fairly extradited so that they can be fairly dealt with and cannot escape justice for their crimes, wherever they may have been committed. We must also keep pace with the increasingly clever ways in which criminals can exploit and benefit from the proceeds of their crimes.

However, the mark of any civilised society is not just how it tackles and treats its criminals but how it helps protect its most vulnerable—from children who can fall prey to either ordinary criminals or the most vile offenders seeking to abuse them, to women who are forced, threatened or deceived into a life of misery and suffering as prostitutes. Meeting those challenges head on are noble aspirations to build strong and secure communities. There is no reason why we cannot achieve that. The Bill is our part in that endeavour.

I turn now to some of the key provisions in the Bill in more detail. Part 1 relates to police reform. The police services face different challenges from those of even a decade ago. Much of what we have already in place is sound and effective in meeting those demands, but the public rightly demand more. Part 1 provides the necessary legislative measures to meet those demands.

The Green Paper From the Neighbourhood to the National: Policing our Communities Together, published last year, set out a radical programme of reform that will transform policing in England and Wales. A cornerstone of that programme is to respond to the need, identified in the Flanagan and Casey Reviews, to improve the visibility of police authorities and to make the police service in general more visible and more accountable to the public it serves.

That work is well under way already, by introducing an independent inspection regime for police authorities and working towards the creation of a blueprint for an effective police authority. The Bill complements that work by strengthening the Police Act 1996, by placing a duty on police authorities to consider the views of the public in the discharging of all or any of their functions. It further supplements the existing framework by specifically asking HM Inspectorate of Constabulary to consider, when police authorities are inspected, the extent to which they have achieved that.

Publicly accountable policing must go hand in hand with more effective policing, and this must be not just at the local but at the regional and national level. It is the Government's role to ensure clarity in the legal and governance frameworks that facilitate that. That is why the Bill contains provisions to strengthen the legislation through which the police collaborate in the interests of greater efficiency and effectiveness. That meets the very clear demand from the Association of Chief Police Officers, the Association of Police Authorities and individual forces and authorities, especially those already working in collaboration with each other, to bring the legislative framework for joint working to be brought up to date, especially as the joint delivery of policing services is becoming more widespread. The measures will help support the outcome of the review by Her Majesty's Inspectorate of Constabulary into what is known as subsidiarity—or the level at which particular services should be delivered—including the development of more strategic collaborative structures.

Of course, the efficiency and effectiveness of any organisation is only as good as those people who work in it. Police forces are no different. The Bill therefore contains provisions which will strengthen the independence and status of the senior appointments panel for chief officers, including changes to create a better, more proactive system for senior appointments. It is widely acknowledged that those changes are necessary to enable better management of talent and development opportunities for aspiring and existing chief officers.

I move on to DNA. In order efficiently and effectively to tackle criminals, the police and their partners also need the basic tools to identify and build the evidence against such criminals. Everyone, I think, recognises the importance of DNA in the fight against crime. As to the retention of DNA from those not convicted, we know from research that between May 2001 and 31 December 2005 there were approximately 200,000 DNA profiles on the National DNA Database which would previously have had to be removed before legislation was passed in 2001, because the person was acquitted or charges dropped. Of those 200,000 profiles, which would not have otherwise have been kept, approximately 8,500 profiles from 6,290 individuals have been linked with crime-scene profiles, involving nearly 14,000 offences. These include 114 murders, 55 attempted murders, 116 rapes, 68 sexual offences, 119 aggravated burglaries and 127 cases of supplying controlled drugs.

Nevertheless, I am sure much will be said today and subsequently about the DNA provisions that we have brought forward in Clauses 96 to 98 in Part 8, so I want to take a little time to remind us of the facts of what we are actually doing and why we are doing it. What is the current position? Under the Police and Criminal Evidence Act 1984, the DNA and fingerprints taken from people on arrest can be retained indefinitely, whether or not they are convicted of an offence. At present, PACE provides that retained biometric data can be used only for purposes connected to the prevention or detection of crime, but the period of retention is at the discretion of the chief constable of each force area. There is currently nothing in statute setting out a retention framework.

Why do we need to change the law now? Many Members of this House will be aware of the case of S and Marper v the United Kingdom over the retention of biometric data, including DNA, from those who have not been convicted of an offence. We argued in the European Court of Human Rights in that case that DNA and fingerprint evidence were critical to the prevention and detection of crime, including very serious crimes that would not otherwise have been solved, set against the lack of detriment to the applicants or others in their position. We also pointed to the substantial safeguards and controls that exist which meant that retention was only of practical consequence for the individual whose records were on the database if a match from a criminal investigation occurred. We also noted that the use of DNA provided speedy exculpation of the innocent as well as identification of a suspect. Further, the domestic courts, including the House of Lords, had all found that the retention of fingerprints and DNA was acceptable, proportionate, commensurate with a civilised and democratic society and in compliance with the Human Rights Act.

We were therefore disappointed with the judgment of the European Court of Human Rights on 4 December 2008 when it ruled that the retention policy in England and Wales was in breach of Article 8 of the convention. The European Court of Human Rights held that the absence of a retention framework on DNA in England and Wales was unlawful and said that the blanket and indiscriminate power to retain biometric data of people arrested but not convicted failed to strike a fair balance between the public interest and the rights of the individual.

A change is therefore needed, and it is needed now. We are committed to complying with the European Court of Human Rights ruling and to doing so as quickly but effectively as possible. That is why the public consultation paper published on 7 May entitled Keeping the Right People on the DNA Database not only sets out proposals to comply with the judgment but, in the cases of samples and young people, goes further than the judgment requires.

What are the Government doing? In the Bill, we are providing for an enabling power to make regulations for the retention and destruction of DNA. The public consultation paper sets out what we expect those regulations to comprise of, and we have published a version of those regulations. The final draft version will, of course, be subject to the outcome of the consultation paper and follow our discussions with the Committee of Ministers, but what is clear from the consultation paper is that we have provided evidence to support the case for the retention of data for those arrested and not convicted and to support the proposed periods of retention.

We are proposing significant evidence-based changes. First, all DNA samples—in other words, the actual biological material such as hair or a swab of saliva—for all persons, whether arrested and not convicted or arrested and convicted, are to be destroyed. That means that around 4.5 million legacy samples will be destroyed and future samples will be destroyed as soon as possible and may be held for a maximum period of six months to ensure that a suitable profile is put on the National DNA Database. This is a major step on our part and recognises the significant public concern about "living" samples being held within the criminal justice system.

Secondly, we propose to retain for six years the DNA profile of people arrested but not convicted of a recordable offence, except in the cases of violent, sexual or terrorist-related offences, for which we propose a retention period of 12 years.

Thirdly, we propose to delete DNA profiles of people aged 10 to 18 who have been arrested and not convicted, and those arrested and convicted after six years or on their 18th birthday, whichever is sooner, unless their arrest or conviction is related to a violent, sexual or terrorist offence or they have been subject to a subsequent arrest or to a conviction for another offence.

Finally, we need to remind ourselves of what happens if the Government do not do this now. Aside from the fact that we need to have made significant progress towards implementing a European Court of Human Rights judgment in a reasonable time, which we are advised is about 12 months from the date of the judgment, delaying a change in legislation in England and Wales will build uncertainty and confusion among the public and police forces. It also creates the potential for legal challenge in the courts. We want to avoid these situations.

Our approach will enable a timely and effective programme of implementation by the police service and the introduction of a retention framework that minimises operational disruption. At the same time, the introduction of regulations will give members of the public who have been arrested certainty about what will happen to their data and when they can expect them to be deleted.

There are also wider issues around public protection. Our approach is to look to raise public protection while protecting the safeguards for the individual. That is an important balance to maintain, and our public consultation and regulatory process not only achieve that but actually enhance it.

I recognise that some Members of this House are likely to share the concerns expressed in the other place that the Bill does not go far enough in setting out the details or that Parliament is not being given sufficient opportunity to scrutinise them. I assure the House that we are not taking this matter lightly. Public support for and engagement in a retention framework are important elements of implementing the judgment by the European courts. Therefore, we have published the consultation paper to hear what the public have to say, and we will use those responses to inform draft regulations that are put before this House. The consultation ends on 7 August.

We have also placed in the House Libraries, for information, an indicative draft of what the regulations could look like, so that all Members can have the fullest possible details of our proposals; and, in the other place, we amended the DNA measures in the Bill to ensure that before the first and any subsequent draft regulations are laid before Parliament, statutory consultees must also be consulted further on those regulations.

We must put in place the ability now to implement the European court's judgment. We must do so in such a way that the public have had their say in how they want the retention regime to work. We are doing all we can to engage the public and Members of this House so that they can have their say on such an important issue. I make no apologies for going on at length about that, because it is such an important issue and we have already had a number of discussions about it on the Floor of the House.

On Part 2, more effective and efficient policing is but one side of the equation when it comes to fighting crime. On the other side of the equation are those unfortunate few on whom the criminals prey, and how it protects its most vulnerable people is the mark of any civilised society. That is why the Government undertook a review on tackling the demand for prostitution last year. Lest we forget, most prostitutes are more victims than volunteers. That review concluded that to curb prostitution and tackle the most exploitative elements of prostitution, including trafficking, enforcement activity should be focused not just on those involved in the organisation of sexual exploitation but on those who contribute to the demand by paying for sex.

This approach is supported by ACPO and a number of organisations working with victims of trafficking and campaigning on women's rights. In particular, Rights of Women, Eaves housing, the POPPY Project, and Toynbee Hall support the approach that we are taking in Clause 13. That is why this Bill provides a new offence of paying for sex with a prostitute who has been subjected to force, threat or deception. There was much debate in the other place on ensuring that these measures do not inadvertently capture circumstances in which prostitutes are willingly in a voluntary business such as a relationship with a third party. That has never been our intention. Clause 13, following amendments in the other place, helps to clarify that by narrowing and tightening the scope of the offence.

Alongside the new offence in Clause 13, the Bill provides for the removal of the term "persistent" from the existing offences of kerb crawling and soliciting to allow police greater powers to tackle kerb crawlers who create the demand for street prostitution and provides police powers to close down premises where they have evidence that they are being used for activities connected with prostitution or pornography-related offences.

These measures must be part of a comprehensive approach that recognises the importance of providing routes out for those who want to leave prostitution. For this reason the Bill includes a new rehabilitative sentence for those prostitutes convicted of loitering or soliciting as an alternative to a fine and it seeks to remove the term "persistent" from that offence, as part of an approach that shifts the emphasis away from punitive issues much more towards more supportive ones.

Children are among the most vulnerable members of our society. I am sure all sides of the House agree that we must do all that we can to strengthen our already very robust system of managing sex offenders. Feedback from groups such as the Association of Chief Police Officers has helped the Government to identify practical steps to strengthen these measures. This Bill will enhance the protection of children by assisting the police in their efforts to restrict the ability of child sex offenders to harm children, both in the UK and abroad. For example, it will strengthen the protection afforded by foreign travel orders by increasing their duration, by ensuring that foreign travel orders can be made against an individual if the young person who could be abused by that individual was under the age of 18 and not just under 16, and by enabling the automatic removal of passports from individuals who are subject to a foreign travel order prohibiting them from travelling anywhere in the world.

Our communities must also be further empowered and feel their views are heard. The increase in lap dancing clubs in towns and cities across the United Kingdom, for example, is an issue of concern for many local communities. To address this issue the Bill will reclassify lap dancing clubs as sex establishments, giving local people a stronger say over whether these clubs are set up in their communities or not. These powers were requested by the majority of local authorities which responded to the Government when they sought views on this issue. The need to respond to the concerns of communities in relation to lap dancing clubs has been highlighted by organisations such as the Fawcett Society and Object.

Many communities are blighted by alcohol-fuelled low-level crime and disorder, particularly as a result of unsupervised under-18s drinking alcohol in public. Of course, most people drink alcohol responsibly, but in some communities alcohol-related crime and disorder has become a significant problem. The police already have a range of powers for dealing with this alcohol misuse. Part 3 includes measures to amend some of these existing powers, as well as introducing a new offence of persistent possession of alcohol, in order to ensure these problems can be tackled even more effectively. We will continue to do more to enforce existing laws around the sale of alcohol, but this activity should not be at the expense of the alcohol industry playing its part. An independent review of the industry's voluntary standards has shown them to be ineffective in reducing alcohol-related crime and disorder.

The Bill seeks to enable the drawing up of a revised code of practice with some conditions that will be mandatory for all licensed premises and others which licensing authorities can use at their discretion to target premises in areas experiencing problems. In establishing the framework for a code of practice for the irresponsible sale of alcohol, we will also ensure a safe, sensible yet social approach to preventing alcohol-fuelled crime and disorder. We are currently consulting more widely on the code of practice, copies of which are available in the Libraries, and my noble colleagues can and should participate in that consultation. The consultation code makes it clear how we propose to tackle alcohol misuse by banning the most irresponsible promotions and encouraging good management practices.

Low-level crime and disorder is not the only new phenomenon confronting our law enforcement colleagues on the streets today. There is also the more violent end of the spectrum of crime on our streets, perpetrated by young thugs in criminal gangs, which is addressed in Part 4. The police and their partners need the tools to tackle the unique challenges posed by this phenomenon and I believe the measures around gangs' injunctions in this Bill meet that demand. We have learnt lessons from the way in which Birmingham City Council applied for civil injunctions against known gang members and from the subsequent Court of Appeal judgment in the case of Shafi and Ellis. That is why, in developing these provisions, we have worked closely with not only Birmingham, but other local authorities and police forces, to ensure that they can tackle this unique gang problem in an effective way, delivering not only the immediate injunctive relief demonstrated by Birmingham, but also offering a preventive and rehabilitative approach to the gang problem. These injunctions will provide the police with a tool that is set firmly in statute, that avoids overlap with other similar tools, such as ASBOs, and that is quicker, more flexible and proven to be effective in managing such gang members, protecting both themselves and members of the public from the serious violence that they unleash.

These measures are not, and never have been, about organised criminals or aimed at groups of youths hanging around on street corners carrying out low-level anti-social behaviour—we already have measures on statute elsewhere that focus on that. However, we have listened to Members' concerns in the other place, in particular whether the measures inadvertently could be used against the latter groups of youth, and so Clause 33 now clearly characterises gangs and gang-related violence for the purposes of these injunctions to clarify this matter. It is also entirely reasonable for authorities applying for these injunctions to consult more widely when making the application. Again this was a point raised by Members in the other place and the changes have been made. I believe that with these changes the measures are now much stronger and clearer.

In Part 5 we go into the proceeds of crime. Of course, local communities also suffer at the hands of other criminals, including more serious and organised criminals. The recovery of criminal assets is one of our most powerful tools in fighting all levels of crime and is one of the Government's top priorities for law enforcement. We already have a strong array of powers and tools to recover criminal proceeds which the law enforcement agencies and prosecutors are using to very good effect. The asset recovery action plan, which was consulted on in 2007, included proposals to further drive up our asset recovery work. The measures in the Bill flow directly from proposals in that consultation exercise and also from suggestions made by the police to further improve existing powers. For example, the new power in this Bill to seize goods on arrest, or later, for acquisitive crime when a confiscation order is expected, will prevent assets being dissipated and send a powerful signal to communities that criminals will not be able to flaunt their illegally gained assets.

However, a fair society must also insist that those who enforce the law use their powers proportionately. The Bill therefore includes safeguards to ensure that the new search and seizure powers are used appropriately, with judicial oversight, and that certain essential items of property and equipment are exempt from seizure.

Overall, the package of measures in this Bill will speed up the enforcement of asset recovery cases and will help to increase the total amount taken from criminals, thereby further depriving them of capital, reducing the incentives for crime and the harm caused by crime, as well as further promoting fairness and confidence in the criminal justice system.

In Part 6 of the Bill we move to extradition. Crime, particularly serious and organised crime, continues to evolve and has become increasingly global and increasingly sophisticated. While the Extradition Act 2003 streamlined and modernised the UK's extradition system, it is vital that we ensure that our extradition legislation continues to meet these new challenges. The measures in the Bill will not only help us to meet our international obligations but also help to meet the demands of a range of departments, services and agencies involved in the United Kingdom's extradition system, including SOCA, the CPS, police forces and the Courts Service. In doing so, they will provide vital operational benefits for United Kingdom authorities.

One such benefit is the power for United Kingdom law enforcement bodies to deal with requests for extradition circulated by our European partners using the second generation Schengen information system, SIS II. It is estimated that the ability to deal with these additional alerts will allow law enforcement authorities in the United Kingdom to make an additional 1,200 arrests of people subject to European arrest warrants each year. The public safety implications of this change are therefore quite significant.

The provisions will also ensure that our extradition system continues to be efficient, effective and fair and prevents serious criminals evading justice merely by crossing an international border. For example, the provisions will close a potential loophole in the current law as a result of which it is currently possible for someone wanted in connection with a serious crime committed in the United Kingdom or already serving a sentence imposed here, by voluntarily consenting to their extradition, say, for a lesser crime abroad, to evade facing the charge or serving out their sentence here, thereby evading justice in the United Kingdom. The Bill will also ensure that where a person serving a sentence in the United Kingdom is wanted for offences committed overseas, they can be extradited to face justice in that country but still be required, if necessary, to serve the full term of their UK sentence when they return.

In Part 7, we move on to aviation security. Building secure communities means enhancing security for all aspects of those communities. That is why the Bill will also enhance the delivery of security at airports by providing an overarching strategy and structure for doing so. This is the result of nearly two years' work with industry and the police, and builds on the Stephen Boys Smith and Sir John Wheeler reviews, both of whom saw that policing could not be isolated from airport security and that risk assessment and airport security planning needed to be embedded at all airports.

The Bill will seek to introduce structures that reflect the holistic nature of airport security and a risk-based approach to deliver a safe and secure environment for all by developing stronger relationships among all those involved in airport security and improving transparency through greater co-operation, closer working and mutual understanding; establishing much clearer roles and responsibilities; more robust security planning, embedding processes to ensure a consistent and thorough approach; and a fairer funding process, removing the outdated system of designation so that all operators pay for any agreed dedicated policing requirement at airports. Both industry and the police have welcomed the value and necessity of multi-agency co-operation, transparency and clarity over roles and responsibilities, which the new security planning framework will provide.

Part 8 covers miscellaneous items. It deals with a range of provisions to improve the efficiency of the Criminal Records Bureau and the planned vetting and barring scheme. There are also provisions to strengthen the powers of Customs, and now the UKBA, at the frontier by clarifying Customs powers to help tackle crime at our borders. The Bill will also seek to ensure that those subject to football banning orders in England and Wales will also be banned from attending regulated football matches in Scotland and Northern Ireland.

I have no doubt that there are many issues in the Bill that will be scrutinised and debated by Members of this House with their usual perspicacity and robustness. I would expect no less, and I look forward to the coming debates. However, I hope that we do not lose sight of the need for practical measures that have practical applications to meet the challenges of crime-fighting today, measures that must balance the need to provide effective tools for our law enforcement agencies to fight crime, as well as measures to protect those who are the most vulnerable to those crimes, against the need to protect the rights of individuals in our society more widely. That is always a very difficult balance. I believe that the Bill does just that and will help us to build stronger, safer and more confident communities.

Commission for the Compact: New Clause 1 — Destruction of samples etc: England and Wales

[Spoken by Alan Campbell on 19/05/2009]

I shall respond to the amendments and new clauses tabled by Opposition Members and speak to those tabled by the Government.

I begin by saying to my right hon. Friend the Member for Leicester, East (Keith Vaz) that, in line with commitments given by the Home Secretary in her speech in December, I am pleased to confirm that the DNA of all under-10-year-olds has been removed from the database. My right hon. Friend also asked about the security of data on the DNA database. There has not been a single instance of the loss or misuse of data retained on the DNA database. I hope I have reassured him on those points.

I shall respond to the points raised by Opposition Members in the substance of my remarks. I welcome the aim of new clauses 1, 2 and 3 because they acknowledge that it is important to ensure that the biometric data of those suspected of violent or sexual offences are subject to a different regime of retention and destruction from the biometric data of a person arrested but not convicted. We would, however, have great difficulty supporting the amendments. I shall deal with the technical problems with them and then put them in the context of the wider argument.

First, the amendments do not clearly define the status of a person who has been released without charge. They could apply to a person released without charge and on bail, or to a person released without charge and informed that no further action would be taken. I can only assume that the latter is the intention of the amendment. The definition of an offence

"of a violent or sexual nature"

may be too vague. It may be more appropriate to list the actual offences involved and, therefore, clarify what offence is and what offence is not subject to a specific period of retention for DNA and fingerprints. It is neither correct nor appropriate to amend section 113 of the Police and Criminal Evidence Act 1984, as proposed, because the section allows equivalent legislative provision in part 5 of the Act to be applied to the armed forces, subject to modifications that are considered necessary to cater for the different circumstances in which the armed forces operate. Any amendments in respect of part 5 of the 1984 Act would be reflected in the statutory instrument that applied those provisions to the armed forces.

Those are technical points. I now turn to the more substantive point about the need to engage the public in any new framework that we propose for the retention of biometric data that are taken during a criminal investigation. I shall also reply to the accusation that we are responding simply to the judgment, because, in fact, we seek to go further than that.

I recognise that some people who are currently on the national DNA and fingerprint databases who have been arrested but not convicted may well ask why, in the light of the European Court of Human Rights judgment, their samples are not being destroyed. The judgment did not hold that any retention of samples of unconvicted people is unlawful per se; rather, it held that we cannot maintain a blanket scheme of retention that applies to all samples. Moreover, as Members will be aware, the existing law stands until such time as Parliament changes or amends it.

The contents of the Government's enabling clause will allow for a retention and destruction framework to be put in place to ensure compliance with the European Court judgment within a reasonable time, and for such regulations to be subject to the consideration of both Houses.

Hon. Members who tabled new clauses 31 and 32 may have done so in the absence of sight of the Government's proposals that were published on 7 May in the consultation paper entitled, "Keeping the right people on the DNA database". It sets out very clearly our proposals to implement the judgment of the European Court in the case of S and Marper, but it also shows that in some areas we have gone further than the judgment requires. One such area is samples.

It is important to get on the record the fact that we have announced our intention to destroy all samples, whether they were taken from a person who was arrested and not convicted, or arrested and convicted, amounting to about 4.5 million samples. That is in direct response to the level of public concern about the retention of living samples by the criminal justice system. In addition, we have indicated that in future all samples must be destroyed as soon as possible and held only up to a maximum of six months for the purposes of ensuring that an acceptable profile is placed on the DNA database. The proposals that hon. Members have set out in new clause 32 do not make the important distinction between samples and profiles, and they fail to take into account a key area of public concern and an issue that was raised in the S and Marper judgment.

Oral Answers to Questions — Home Department: DNA Database

[Spoken by Vernon Coaker on 18/05/2009]

We will be retaining samples for a maximum of six months, after which time they will be destroyed whether the person is convicted or not. On DNA profiles, the public consultation paper "Keeping the Right People on the DNA database", published on 7 May 2009, sets out our proposals and the thinking behind them. Our approach is supported by evidence on the propensity to offend, which indicates that there is a span of four to 15 years within which retention periods can be justified.

Our key consideration is implementing the judgment of the European Court of Human Rights in the case of S and Marper in a way that balances the need to protect the public with the need to safeguard the rights of the individual.

Written Answers — House of Lords: Biometric Data

[Spoken by Alan West on 18/05/2009]

Other than the relevant fingerprints and DNA samples belonging to S and Marper, no fingerprints or DNA samples have been destroyed as a result of the judgment of the European Court of Human Rights (ECHR) in the case of S and Marper v United Kingdom.

Article 41 of the Convention for the Protection of Human Rights and Fundamental Freedoms provides that if the court finds that a violation has occurred, just satisfaction must be made to the injured party. The application of the judgment to others in similar situations must be considered in the light of the full content of the judgment. The judgment does provide for the member state to consider the scope for achieving a proper balance with the competing interests of tackling crime and preserving respect for private life.

We do acknowledge the need to implement the judgment in a timely manner but we also recognise the over-riding importance of introducing a proportionate response which has been subject to wide public debate as well as consideration by Parliament. That is why on the 7 May 2009 the Home Secretary launched the public consultation "Keeping the Right People on the DNA Database". The consultation paper sets out the Government's proposals to implement the S and Marper judgment and the proposed framework to ensure public protection and safeguard the rights of the individual.

The responses from the consultation will assist in the forming of draft regulations to be submitted to Parliament for approval later this year. Until Parliament has amended the Police and Criminal Evidence Act 1984 on the retention of DNA and fingerprints, the current law remains in place.

Individuals who wish to have their DNA samples and fingerprints destroyed can apply to the chief police officer of the force which took the samples and fingerprints for them to be removed under the exceptional case procedure. The decision whether or not to agree to the request for removal is a matter for the discretion of the relevant chief police officer.

Written Answers — Home Department: DNA Database

[Spoken by Vernon Coaker on 18/05/2009]

Our proposals, set out in the public consultation paper "Keeping the Right People on the DNA database" published on 7 May 2009, were drawn up against the background of the judgment of the European Court of Human Rights in the S and Marper case. They aim to implement the judgment in a way which continues to protect the public while safeguarding the rights of the individual.

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