Crime and Security Bill

Public Bill Committee, 2 February 2010.

James Brokenshire (Conservative, Hornchurch)

On a point of order, Mr. Cook. I welcome you to the Chair of the Committee. You will probably be aware that there is a ways and means resolution relating to the Bill scheduled for debate on the Floor of the House on Thursday. However, it appears that, if there were a statement on the Floor of the House, members of the Committee would not be able to take part in the discussion of the ways and means resolution. Have you received any representations on the timing of that debate, or any other aspect, in terms of the ability for members of the Committee to participate, given that the matter is directly relevant to the Bill? It seems strange that the debate is scheduled at potentially the same time as the Committee is sitting, with members of the Committee unable to participate in one or the other.

Frank Cook (Labour, Stockton North)

I have had no notice of that, but I will do whatever is necessary to try to discover what the position is. I have to say, as one who has been here for 27 years, that that is not a novel situation—it has happened on many occasions in the past. I will do whatever I can to discover the circumstances.

Clause 1

James Brokenshire (Conservative, Hornchurch)

I beg to move amendment 1, in clause 1, page 1, line 6, at end insert

‘which may be made by electronic record or by the recording of a telecommunications message containing the relevant details.’.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss amendment 51, in clause 1, page 2, line 1, after ‘vehicle,’, insert

‘the stated name and address of the person searched,’.

Amendment 52, in clause 1, page 2, line 9, leave out from ‘as’ to ‘perceived’ in line 10.

James Brokenshire (Conservative, Hornchurch)

It is a pleasure to serve under your chairmanship, Mr. Cook. We have a number of matters to debate, some of which, I am sure, Her Majesty’s Opposition will scrutinise in a very productive and positive way. Certain provisions later in the Bill are likely to prove much more controversial, and we look forward to those important debates.

Clause 1 and amendment 1 deal with powers of stop- and-search. Government changes to the requirements on recording information from stops and searches reflect their understandable desire to reduce police bureaucracy in an appropriate way. That is part of the wider issue of the police’s ability to get on with their job, with the elements of discretion and flexibility they need to protect our communities in an appropriate fashion. Clearly, the police cannot get on with that job if the Home Department is always breathing down their neck and if they are tied up with bureaucracy, paperwork and red tape that prevent them from actively carrying on with their duties. That is a concern in the light of the fact that the police spend more of their time filling in forms and doing paperwork than on the beat: just 14 per cent. of police officers’ time is spent on patrol compared with 22 per cent. of their time spent on paperwork.

The culture of bureaucracy that has grown up under this Government is clearly a big issue. It was interesting to note the evidence given to the Committee last week by Paul McKeever, the chairman of the Police Federation, who said:

“If you look at police bureaucracy generally, there is an awful lot of it out there, and it would take an awful lot more than just dealing with stop-and-search to put it right.”——[Official Report, Crime and Security Public Bill Committee, 26 January 2010; c. 13, Q30.]

However, we are dealing with stop-and-search specifically in clause 1. It is important that steps are taken to deal with some of the bureaucracy—the form-filling requirements and the paperwork—that sits alongside powers of stop-and-search under the Police and Criminal Evidence Act 1984 and the associated regulatory burden. The Conservatives would go further than the Government propose. That is part of the reason for tabling the amendment. We also believe that the bureaucratic requirements and the paperwork relating to stop-and-account are too onerous and question whether they add a great deal in terms of police intelligence information, or the need for proper assessments on how the police utilise those powers.

There is a clear need for the police to have the right to stop and search someone for stolen or prohibited items if they have reasonable suspicion, which is what the powers under section 1 of PACE allow. Carrying out searches to identify whether people are carrying drugs or weapons in our community is clearly useful. It is certainly a significant power and is heavily utilised: in 2007-08, 1,035,438 people were stopped and searched under section 1 of PACE and connected powers under the Firearms Act 1968 and the Misuse of Drugs Act 1971. Thinking about the regulatory burden and the attached paperwork, we note that Sir Ronnie Flanagan’s interim report on policing suggested that the total recording and administration time for a stop-and-search form was 25 minutes. In that context, we also have to consider that about 11 per cent. of those stopped and searched are arrested as a result of the search. It is interesting to consider the important role that technology can play in recording information taken on stops-and-searches.

When I have patrolled with the police, it has been interesting to see the powers used in connection with drugs dogs, for example: if a drugs dog indicates that someone might be in possession of an illicit substance, obviously a stop-and-search should be conducted because that is reasonable suspicion. Therefore, on such operations, it is understandable that there is significant use of stop-and-search if grounds for reasonable suspicion have been identified. However, there needs to be clear trust and confidence on the part of the community in how the power is used.

Section 1 of PACE was, in part, a response to the Scarman report on the Brixton riots and, therefore, the need to retain trust and confidence in how the police use the powers, which are obviously potentially intrusive. Knife arches and other electronic scanners may have made them slightly less intrusive in terms of avoiding the necessity for a pat-down search, but such searches are still utilised and still needed, so there is a need for trust and confidence in how the police organise searches and how they utilise their powers. That feeds into how data are recorded and utilised. The practice of recording stop-and-account was developed after the Macpherson report into the killing of Stephen Lawrence, and there is a similar desire to give trust and confidence to the community on the levels of information recorded to ensure that those powers are used appropriately.

What is the appropriate level of reporting on stops-and-searches to provide that confidence and how can reporting be conducted so as not to impede operational police requirements unnecessarily? The balance is reflected in clause 1 and amendment 1. The concept is recognised in Sir Ronnie Flanagan’s report on policing and Jan Berry’s review on reducing police bureaucracy. She gave evidence to the Committee last week and is the Government’s police bureaucracy tsar. Information relating to stops-and-searches needs to be recorded, but the current process is simply too bureaucratic.

Amendment 1 would ensure that the information may be recorded by means other than written notification—the completion of a form. In other words, it clearly and explicitly provides for the utilisation of technology. I am aware that the British Transport police, for example, are starting to use personal digital assistants—PDAs—to record some of the information required for a stop-and-search. The relevant information can be recorded and retained by, for example, an officer radioing through the basic details of the search to create a digitally taped or transcribed police log at the centre with no forms. That would ensure that stops-and-searches would still be recorded but without the burden of having to fill in a form at the scene and a further form back at the police station.

The Flanagan review contemplated stop-and-search information being recorded in that way and amendment 1 provides the necessary level of flexibility to enable that to happen. Obviously the introduction of new Airwave technology across police forces makes that more readily achievable. We believe that that would be a practical means of ensuring that information is recorded. It would provide reassurance to communities and reduce bureaucracy, thereby freeing up officers’ time to remain in communities, to be proactive in their policing and to ensure that evidence is gathered in an appropriate way.

My right hon. and learned Friend the Member for Sleaford and North Hykeham made the case last week for modifying the information requirements as proposed in amendments 51 and 52. We will listen closely to the points he makes on those amendments. On the question of recording the identity of the person searched, I heard the Minister’s statement last week that the information does not have to be provided by the person searched, which in part explains why it was felt that making the requirement mandatory might not be appropriate.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

My hon. Friend will see that the word “stated” appears before “name and address” in amendment 51. It would not be a mandatory requirement to supply it, but if it were supplied then it should be recorded.

James Brokenshire (Conservative, Hornchurch)

My right hon. and learned Friend makes an important point. It was clear from what Jan Berry told the Committee that if information is given and if intelligence is provided to the police that may be relevant and useful, it should be retained in some way. Even if that amendment were not accepted by the Minister, I take it that that information would be recorded in some other way, such as a note in the police officer’s record. Jan Berry made a clear point when she said:

“I would not want them to see the lack of requirement to record details as a reason not to collect intelligence.”——[Official Report, Crime and Security Public Bill Committee, 26 January 2010; c. 5, Q9.]

It is a question of balancing the statutory requirements in the Bill and the amendments to PACE regarding the mandated requirements for the types of information to be recorded, against the need to ensure that relevant intelligence is protected. If there is information that a suspect was in a particular area at a particular time, that may be useful intelligence that could be captured. I suppose that how the police might seek to use that intelligence is a question of judgment and degree. It will be interesting to hear not only what my right hon. and learned Friend says in support of his amendments, but how the Minister of State envisages the intelligence being retained, which may not be specifically set down in the statute.

The Minister of State has made a number of claims about the time that will be saved by the proposals in the Bill. Any reduction in police bureaucracy is certainly extremely welcome, given the way that it has burgeoned over the past 12 years, but would the full extent of the time savings be realised if intelligence information were being collated in a different way? If the names that are given and perhaps other details are to be recorded, will that fully utilise the amount of time saved to which the right hon. Gentleman alluded last week? It would be useful to understand how he arrived at the calculation of the time saved. Did the calculation take account of the need to collect certain intelligence over and above the statutory requirements that may be set out in the Bill?

This will be a useful debate, putting into the frame the pressures and bureaucracy that the police have to deal with. As the Police Federation said, this is a small step. Clearly there is much further to go in dealing with the wider bureaucracy and paperwork that the police face.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

First, Mr. Cook, let me declare a personal interest, in that I am a criminal barrister practising in the criminal courts. Might I declare that now and not again? Secondly, it is a pleasure to serve under your chairmanship. You reminded me that we last appeared on a Committee together a long time ago, on the Firearms (Amendment) Bill in 1987. A further bit of background information is that I happened to be the Whip on the second Committee stage of the Bill that became the Police and Criminal Evidence Act, which this Bill amends in a number of respects. I recall that there were two considerations of that Bill by Committee; first David Mellor was the Whip on duty, and thereafter I was, taking the Bill through to enactment. I make that point by way of a preamble; it only suggests that I have been here a very long time.

Amendment 1, moved by my hon. Friend the Member for Hornchurch, makes a lot of good sense but it does not need to go in the Bill. It is about modalities, and I am in favour of not putting in the Bill a modality that may be overtaken in time by technology. However, he is clearly right in the substance of his suggestion: the police should, wherever possible, try to use modem technology to reduce the bureaucratic burden that they face.

My second point before I come to my two amendments is that I have served as a special constable on the beat in the metropolitan area. I was attached to Cannon Row police station in the mid 1970s, and patrolled around Trafalgar and Parliament squares and up to Waterloo place. Also, the Committee will appreciate that as a criminal barrister, I have been in many courts and seen many clients.

One has to be ware of the police. I believe that even today there is a certain amount of abuse, generally defined. As a special constable and as a junior barrister, I saw and became conscious of a lot of abuse. Therefore, when one says that one has to do away with bureaucracy, in one sense that is right—of course one must. But one must also keep in mind that the police are capable of abusing their power and not so relax the restrictions and constraints that abuse of power is not identifiable.

I always say in Committee and on the Floor of the House that when one gives power to the agents of the state, one has to recognise that inevitably, in time and on occasion, that power will be abused. Consequently, one gives away as little power as one reasonably can, and, when one gives it away, one hedges it about with restrictions and constraints, because we owe that duty to the citizen. Therefore, beware of bureaucracy of course, but remember too that the restrictions are often for the protection of the citizen—including the young citizen. When I first entered Parliament in 1979-80, there was a tremendous continuing row about the Vagrancy Act 1824, which contained the old stop-and-search powers. It caused immense rows on the streets of London, especially among the ethnic minorities. We must be careful not to so relax the restrictions that real anxiety about the use of stop-and-search breaks out again among the ethnic minorities.

I have two brief points about my own amendments. Amendment 51 goes to name and address. I accept that there is no requirement, as a general proposition, for a citizen to furnish his name and address to a police officer who stops him in the street. There are circumstances when he has to, but generally speaking I believe there is no requirement. However, it is often desirable to find out the name and address, and there is nothing to stop a police officer saying, “Excuse me sir, do you mind giving me your name and address?” If the person gives it, there is merit in recording it. It is not a great burden to record it. Indeed, I noticed in the first evidence session that Mr. McKeever said that he had no particular problem with the suggestion.

Why does one need the information? Perhaps for intelligence—perhaps someone has given the wrong name and one subsequently checks it. It is quite interesting that he has given the wrong name. Why? What if he complains? An officer may know exactly with whom he is dealing. I see merit, if the name is volunteered, in recording it—that is no great shakes. If my hon. Friend the Member for Hornchurch is right about the method of recording it, down it goes through the radio communication and that is that. I would have the measure, on the sort of terms that I have suggested.

The other point, about ethnicity, is quite different. I worry about that, insofar as the Bill suggests that it is the officer stopping the person who is required to state that person’s ethnic origins. New subsection (6A)(a) of section 3 of PACE refers to

“the ethnic origins of the person as described by the person”.

That clearly indicates to me that the constable says to the chap he has stopped, “What is your ethnic origin?” I would be chary about that. I walked the streets as a special constable and I do not think that that is a prudent question to ask. It is potentially confrontational. What happens if he replies, “Human race.”? The officer is not going to be very happy with that. There would be that kind of answer, let me tell you, Mr. Cook. That is certainly the sort of answer one might get from a lad on the street. What does one do then? Take it further? If the officer asks, “What is your origin?” the answer could be, “What the hell has it got to do with you, officer?” What does one say then? Or it could be, “Look—make up your own mind, officer.” There are lots of variations. Why introduce a confrontational note? The truth is that when an officer stops somebody, he can make his own assessment as to ethnic origins and record it.

When I was standing at Trafalgar square as a special constable, there would often be a radio message up from Parliament, but it was not very praiseworthy. It was, “RC3—where’s the stop?” RC3 in those days had a meaning, although I forget what it was. I was being told by a constable down in Parliament square that I might stop somebody coming up in a beaten old Vauxhall. An officer on the street can well identify ethnic origins and record them for him or herself, without there being any confrontation between that officer and the person stopped.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

Does the right hon. and learned Gentleman agree that there may be an inclination on the part of officers, if given the answer, “I am a member of the human race,” to fill in the form in the way that he wants them to?

Douglas Hogg (Conservative, Sleaford and North Hykeham)

That is possible. “I am a member of the human race” is not a very informative reply, but it potentially causes aggro and confrontation. My last point, unless anyone else intervenes, is that we would be well advised not to put in the requirement for the constable to initiate the question; better to leave it to the constable’s perception and judgment.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

Amendment 1 has some merit. I will listen carefully to what the Minister says in response. We would probably all support the use of electronic means to log details, as a way of reducing the amount of time that officers spend on paperwork and the number of double entries required when manual records are taken and subsequently entered at a later date.

David Hanson (Labour, Delyn)

Welcome to the Chair, Mr. Cook, following your co-Chairman, Sir Nicholas. I wish you a successful time. You will be chairing for the majority of the week, and I look forward to it a great deal.

First, I say to the right hon. and learned Member for Sleaford and North Hykeham that I am sure that I would also have been on the Committee in 1987 with him and you, Mr. Cook, had I not failed to get elected in that year’s election in the constituency in which I currently reside. I would have loved to have served on that Committee and will certainly look at the PACE proceedings in Hansard when I have a quiet moment.

There is consensus on this Committee. We all wish to reduce police bureaucracy and to improve the use of technology to record what we need to record if we are to have the information we need. I genuinely offer the hand of friendship to the hon. Member for Hornchurch and say that the Government do not disagree with the Opposition on those issues. We need to look at whether our proposals in the Bill will meet those obligations and whether the amendments will help to improve the situation. That is what we are all jointly trying to achieve.

The hon. Gentleman will be aware that Jan Berry not only gave evidence to the Committee last week, but produced a report for the Government before Christmas, which we incorporated into the White Paper. There are some 39 recommendations to reduce bureaucracy; we have accepted 13 and are working on the others. We have also commissioned Jan to do a second year’s work, so we are trying to adopt a general direction of travel.

I hope that the amendment will be withdrawn, because it and amendments 51 and 52, tabled by the right hon. and learned Gentleman, would add to police work and to bureaucracy for officers on the front line. The existing requirement for the record of a stop-and-search to be made in writing does not preclude electronic records in any way, shape or form. Indeed, the PACE code of practice already provides guidance on the use of electronic records for stop and search, such as those made on BlackBerrys and PDAs, by forces that wish to use such technology. As of today, nine forces are recording relevant encounters through electronic means.

It would not be appropriate for a record to be made solely by means of a voice message, as it needs to be possible for individuals to be able to obtain a written record of the stop-and-search after the event. Technology is being explored that would turn voice messages into electronic or written records. That is not possible at present, but PACE would not preclude it, should we develop the technology further, as I hope we will. Only one force has looked into the practicality of voice messaging. I am not against that in principle and we will consider it in due course.

James Brokenshire (Conservative, Hornchurch)

My question arises from Sir Ronnie Flanagan’s review, Jan Berry’s recommendations on stop-and-account, and the guidance proposals that stop-and-account information should be retained and recorded via a radio message. How is that practice developing and how is it being utilised? There are some parallels with stop-and-search, and Sir Ronnie Flanagan’s report flagged it up as a future development.

David Hanson (Labour, Delyn)

We continue to work on that recommendation. Sir Ronnie Flanagan’s report was published in February 2008 and recommended using Airwave, the police radio system, to record stop-and-account encounters. Some 24 forces are using it at present, and as I said during my evidence to the Committee, we want to continue to develop that recommendation, not only through the Airwave system, but through other electronic technology.

There is no disagreement in the Committee about the desire to improve the use of technology to speed up the automatic collection of information. Indeed, I indicated during my evidence last Thursday that the Bill reduces the number of items to be recorded from 12 to seven. Of those seven items, three can already be automatically recorded by a number of forces, and all forces will be able to record them through Airwave when it is fully utilised in the near future. The date, time and place of the stop-and-search will therefore be recorded by automatic use of the Airwave system.

Included in the provisions of clause 1 are the four remaining items: ethnicity, object of search, grounds for search and identity of the officer carrying out the stop-and-search. There is certainly no disagreement between us. Mobile technological solutions using both Airwave and electronic devices are being explored further as part of our concerted effort to reduce the bureaucracy faced by front-line officers, and ultimately to improve the service to the public at large—a concern that we all share.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

The Minister of State will recall that last Thursday he was not able to give the Committee details about the assumptions that were made in arriving at the figure of a saving of 200,000 hours each year. Is he now in a position to fill in Committee members on precisely what assumptions were made about the number of times that officers would perhaps capture the whole data because they felt that they were necessary for possible future investigations?

David Hanson (Labour, Delyn)

That question was also raised by other members of the Committee in the initial debate. I was going to refer to it later, but I might as well do so now. I hope the hon. Member for Carshalton and Wallington accepts that the figure is an assumption, which may be out or may be right. We have estimated that 12 minutes is saved by reducing the recording of the information. We have based that estimate on the savings that have been made on stop-and-account timings. We have assessed officer time at about 12 minutes per stop, and have multiplied that by the number of stops and searches conducted in 2007-08. It is not an exact science because there may be more or fewer searches this year than in 2007-08, but it gives us a simple mathematical conclusion of 200,000 hours. It is never an exact science; we can but try.

As has been mentioned, we have via the Home Office and the National Policing Improvement Agency invested £80 million in 32,000 mobile devices, bringing to almost 42,000 the number of such devices in operational use by the police. They are used to carry out checks on the police national computer and to send information back and forth. I wish to see that use of technology continued. I do not believe that the amendment tabled by the hon. Member for Hornchurch would add to where we are, because we are already travelling in that direction. Amending the Bill in that way would not change anything, and would potentially add to the time taken.

Amendment 51 would increase the recording requirements of the search, to include a person’s stated name and address. I am repeating myself, in the sense that I said to the Committee last Thursday that there is no requirement for that at present, which was acknowledged by the right hon. and learned Member for Sleaford and North Hykeham in his contribution. However, there is a requirement to record a person’s name if the constable knows it, and/or, if he so wishes, a description of the person. As the Committee discussed last week, it might be of value in some stop-and-search encounters if it were open to the officer to ask for the information and, if required by the circumstances, to record it. However, it is important to reflect on what Jan Berry said in her submission to the Committee last week—that those matters are best left to the discretion of the officer involved. There is an option to record the information, but it is down to the discretion of the officer involved. Making that a requirement would ensure that we were not achieving what we were trying to do, which is to reduce the bureaucracy involved in having that information to hand. The discretion to record it is still there. Self-evidently, when a person is arrested and taken to a police station following a stop-and-search, their name and address will be established and recorded in the custody suite, as is normal practice.

Amendment 52 deals with the question of self-defined ethnicity. The amendment requires only the officer to record the self-defined ethnicity of the individual. We are not at this stage simply by chance. We are at this stage because recommendation 61 of the Macpherson report into the death of Stephen Lawrence requires the self-determined ethnicity of the individual to be recorded. If I accepted the amendment tabled by the right hon. and learned Member for Sleaford and North Hykeham, I would be moving away from a core recommendation of that report. I do not think that would be welcomed by the ethnic minority communities, or give them extra confidence in the police and how they operate.

It is already a requirement to record self-defined ethnicity. There is a code that a constable can use when a person refuses to state their ethnic origin. I wholeheartedly accept the many practical examples presented by the right hon. and learned Gentleman. I am sure that they will be common practice on the several days of the week and several months of the year when those things happen. I accept that entirely. In the event of that occurring, the officer can currently record the ethnic origin as “not stated”.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I have some difficulty in seeing why an officer should ask that question. What is the merit in asking that question when one could look at the person stopped and form one’s own judgment? Why ask the person who has been stopped to state what he or she thinks is their ethnic origin?

David Hanson (Labour, Delyn)

I go back to first principles. A person’s ethnic perception is in the ownership of that individual. It is their judgment. If I was asked to describe myself, I would describe what I believe I am. It is not for someone else to make a judgment on my ethnic perception. We should remember that the Macpherson report is about confidence for black and minority ethnic communities. If I accepted the right hon. and learned Gentleman’s proposition, I would undoubtedly face criticism, discussion, and a failure of confidence, from many people in ethnic communities, in policing in the wider world. We would have overturned a key recommendation of the Macpherson report on Stephen Lawrence—that the self-defined ethnicity of an individual is the key to defining their ethnic background.

There may be honest disagreement about that, and I can see that the right hon. and learned Gentleman does not agree with that proposition, but I will stick to the recommendations of the Macpherson report. The perception of the officer is not the crucial aspect; it is the perception of the individual who is stopped and searched. That ethnicity and ethnic background belongs to them, not to the officer.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Clearly, there are merits in the police knowing, in general terms, the racial background of the people they stop, so that when they construct statistics they can say that of the people they stopped, x proportion came from the ethnic minorities. There may well be merit in that, and that flows from the officer’s perception of the ethnic origin. I do not see that the person’s personal identification of his or her ethnic origins adds to that one jot.

David Hanson (Labour, Delyn)

It boils down to the determination of what an individual thinks they are, and what a police officer thinks they are. Let me just put one other point to the right hon. and learned Gentleman. Shortly, in the next eighteen months or so, a further census will be undertaken. We do not allow people to have what the police or the census officer believe is their ethnic—

Douglas Hogg (Conservative, Sleaford and North Hykeham)

They do not see them.

David Hanson (Labour, Delyn)

The point is that it is the individual who defines their ethnic background on the census form, because that is how they define themselves. I have fairly swarthy colouring; I could be defined as something that might not be the same as an officer might think.

Simon Burns (Conservative, West Chelmsford)

Like what?

David Hanson (Labour, Delyn)

I do not know, I am simply saying that I would define myself as one thing and an officer might define me as something else. The situation is down to an individual’s self-definition.

Shona McIsaac (Labour, Cleethorpes)

If it assists my right hon. Friend, my husband has been variously described by others as Pakistani, Iranian, Italian, Turkish and Spanish. In fact, he was born and brought up in Northern Ireland. That shows that people’s perceptions can be wide of the mark.

David Hanson (Labour, Delyn)

My hon. Friend makes a very fair point. The point I was making about myself is that I am British-born and British-bred but I suspect that somewhere downstream there might have been someone from the Spanish armada or a Roman soldier in my family to give me my colouring. A police officer’s judgment of the colour of an individual—as my hon. Friend mentioned—might differ from the individual’s perception of their ethnicity. Macpherson’s recommendation 61 is about self-definition of ethnicity and I wish to maintain that principle.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I would like to go back to the point that I made to the right hon. and learned Member for Sleaford and North Hykeham. If an officer is given the response, “I am a member of the human race”, he might choose to enter the ethnic minority category he thinks appropriate. In practice, no one would be able to stop that officer—apart from ensuring that he has training—entering a definition that he has chosen himself.

David Hanson (Labour, Delyn)

The crucial point is that numbers recorded as a result of ethnic assessment by the officer or the individual in cases such as the hon. Gentleman mentioned, are reflected in statistics on the numbers of that particular ethnic group who are stopped and searched.

There is a danger of officers entering what they believe to be the ethnic origin of an individual. I would much rather have self-defined ethnic origins recorded as x number of white Caucasians, x number of Chinese, x number of Asians, x number of whatever people determine, and a percentage “not stated”. That could be anything from white to deepest black. I would rather have that, than an officer making a judgment that bumps up the calculations of an ethnic minority on those forms.

There is an honest disagreement. I always try to seek consensus in these matters and the Government will, as I am sure will the Opposition, continue to drive down bureaucracy and use electronic and new technology to improve the collection of information. However, I cannot accept the amendments and I hope they will not be pressed.

James Brokenshire (Conservative, Hornchurch)

This has been a helpful and useful debate in setting out where the Government and police are in the use of technology to assist in the process of maintaining information and recording details where required. It was interesting that the Minister rightly alighted on Jan Berry’s point about giving the police greater discretion. That is very important, not simply in this debate, but more generally in relation to police activities.

The Minister slightly glossed over Jan Berry’s corollary point that if something was not prescribed, would it mean that intelligence was not gathered? I am not in favour of a box-ticking culture but because of the way in which process, form-filling and bureaucracy have become a day-to-day part of policing, there is a wider need to change the culture. That was perhaps what Jan Berry’s comments addressed—the need for giving discretion but also for a cultural shift. She expressed concern that there should not, as a consequence of the change, be any loss or lack of intelligence as a result of the pervasive box-ticking mentality. Intelligence will still be required, where appropriate. The use of technology and the development of systems for recording information are important steps forward in day-to-day policing and in freeing up police time. It was helpful to hear what the Minister said about rolling out certain technologies and that speed can be adopted while preserving relevant information for those who wish to analyse the data obtained and providing those who have been searched with a proper record of the events and circumstances that transpired.

The issue of ethnicity is extremely important, particularly in the utilisation of stop-and-search powers by the police. We will come on to that in a later debate on changes to the Terrorism Act 2000 and the proportion of people from minority ethnic communities subject to those powers as contrasted with the rest of the population. I understand the Government’s desire to ensure that information is recorded properly so that assurance can be given on how the powers are being used. We do not want to return to the days when it was almost felt that the police were unable to use certain powers, although they might have been needed or justified, because of concerns over community cohesion and how the use of the powers might be perceived. It is important that information on ethnicity is provided in relation to stops-and-searches.

I understand, on some levels, the points that the my right hon. and learned Friend the Member for Sleaford and North Hykeham makes about perception and how we get the most accurate information but, on balance, I agree that the approach taken, on self-determination by an individual as to how they wish their information to be recorded, is a fair one. However, I would not like to get to a situation in which trust and confidence are eroded so that no information is provided. It is obviously up to an individual whether they wish to respond to that question.

We have to be vigilant and continue to monitor how the powers are used and what proportion of minority ethnic communities are subject to such potentially intrusive powers as contrasted with other communities. However, in light of the Minister of State’s comments and this useful debate, I beg to ask leave to withdraw the amendment.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I beg to move amendment 49, in clause 1, page 1, line 13, leave out ‘, if that is not practicable,’.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss the following: amendment 50, in clause 1, page 1, line 13, after second ‘as’, insert ‘reasonably’.

Amendment 64, in clause 4, page 7, line 25, after second ‘as’, insert ‘reasonably’.

Amendment 65, in clause 4, page 8, line 6, after second ‘as’, insert ‘reasonably’.

Amendment 66, in clause 4, page 8, line 27, after second ‘as’, insert ‘reasonably’.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

My purpose with the amendment is to relax slightly the requirement as to when the records in question have to be made. The Committee will appreciate that there is a distinction between “practicable” and “reasonably practicable”. Some things are practicable that are not reasonably practicable. For these purposes, we should not set the bar too high. May I give an example, not from police work, but from the experience of somebody who likes the countryside?

It is often practicable to cross a stream in spate but it is not necessarily reasonably practicable, because one may very well fall in and perhaps drown. I like going up mountains a lot, and it is often practicable to get to the top of a snow peak in a blizzard but that does not mean to say that it is reasonably practicable. One would be ill advised to do it, but one can do it. There is a difference in meaning between “practicable”, which means achievable, and “reasonably practicable”, which means reasonably achievable in the circumstances that one faces.

I do not want to create obligations that set the bar too high, because that may give rise to complaints. Although I wish to ensure that powers given to the police are properly restricted and constrained, I do not believe that the concept of reasonableness, in this context, is in any way prejudicial to the liberty of the citizen. My purpose is to set the bar a little lower than the Bill requires. I can imagine that, in the turmoil of police work, an officer would in some circumstances decide that the issue was not reasonably practical because of the other burdens upon him or her at that particular time, whereas the individual citizen might say that it was practicable. Let us not have the bar too high; that is the only purpose of the amendment.

James Brokenshire (Conservative, Hornchurch)

I shall comment briefly on the amendments. As a learned legal practitioner, my right hon. and learned Friend has a good insight into the implications of getting the drafting and the detail right and how the relevant factors may be interpreted by the courts. The key issue is ensuring that the police have discretion in relation to the way in which information is recorded. If the conditions are not practicable and a contemporaneous record cannot be made due to operational circumstances, the police should have discretion to record the information as soon as is it is reasonable to do so after the event. The important thing is that the information is recorded correctly and appropriately. At the same time, however, the way in which the information is recorded should not fetter the operational requirements of the police. I agree with my right hon. and learned Friend’s view on the need to change the bar. The important thing is that there is sufficient operational flexibility in relation to the utilisation of the power so that we have the correct information while not fettering officers too much. Live and ongoing requirements should not be prejudiced, so the information may need to be recorded at a slightly later point.

David Hanson (Labour, Delyn)

I shall be short and to the point. My main concern about the right hon. and learned Gentleman’s amendment boils down to the fact that, in the event of the officer not completing the stop-and-search form on the spot, as planned under clause 1, there is a danger that a later completion will lead to more errors, more inconsistency and, ultimately, more complaints to the police about the procedures. The amendment would increase the risk of incomplete or inaccurate records being submitted. We are also concerned that it would reduce the number of occasions on which an individual could receive the form at the time of the stop-and-search. The amendment would therefore lead to more difficulties for the police and would not be practical for either the person who is stopped and searched or the police. Ultimately, it would be of greater difficulty to the system as a whole, so I urge the right hon. and learned Gentleman to withdraw the amendment.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I beg to ask leave to withdraw the amendment.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss the following: amendment 21, in clause 44, page 84, line 27, at end insert—

‘(1A) Section [Stop and search power] extends to England and Wales and Scotland only.’.

New clause 1—Stop and search power—

‘(1) If a police officer of or above the rank of sergeant reasonably believes—

(a) that incidents involving serious violence may take place in any locality in his police area, and that it is expedient to give an authorisation under this section to prevent their occurrence, or

(b) that—

(i) an incident involving serious violence has taken place in England and Wales in his police area;

(ii) a dangerous instrument or offensive weapon used in the incident is being carried in any locality in his police area by a person; and

(iii) it is expedient to give an authorisation under this section to find the instrument or weapon, or

(c) that persons are carrying offensive weapons or dangerous instruments without good reason in any locality in his police area,

he may give an authorisation that the powers conferred by this section are to be exercisable at any place within that locality for a specified period not exceeding—

(a) six hours in the case of an officer of the rank of sergeant; and

(b) 24 hours in the case of an officer of the rank of inspector or above.

(2) If it appears to an officer of or above the rank of superintendent that it is expedient to do so, having regard to—

(a) the need to prevent injury or loss of life;

(b) offences which have, or are reasonably suspected to have, been committed in connection with any activity falling within the authorisation; and

(c) all relevant information giving rise to the belief of the relevant police officer described in subsection (1),

he may direct that the specified period during which the authorisation conferred under subsection (1) shall be extended to a period not exceeding a maximum of 48 hours.

(3) If a police officer gives an authorisation under subsection (1) he must, as soon as it is practicable to do so, cause an officer of or above the rank of superintendent to be informed.

(4) This section confers on any constable in uniform power—

(a) to stop any pedestrian and search him or anything carried by him for offensive weapons or dangerous instruments;

(b) to stop any vehicle and search the vehicle, its driver and any passenger for offensive weapons or dangerous instruments.

(5) A constable may, in the exercise of the powers conferred by subsection (4) above, stop any person or vehicle and make any search he thinks fit whether or not he has any grounds for suspecting that the person or vehicle is carrying weapons or articles of that kind.

(6) If in the course of a search under this section a constable discovers a dangerous instrument or an article which he has reasonable grounds for suspecting to be an offensive weapon, he may seize it.

(7) A person who fails to stop, or to stop a vehicle when required to do so by a constable in the exercise of his powers under this section shall be liable on summary conviction to imprisonment for a term not exceeding one month or to a fine not exceeding level 3 on the standard scale or both.

(8) Any authorisation under this section shall be given in writing signed by the officer giving it or, where that is not practicable, recorded in writing as soon as it is practicable to do so and shall specify the grounds on which it is given and the locality in which and the period during which the powers conferred by this section are exercisable; and any oral authorisation must be recorded in writing as soon as it is practicable to do so.

(9) The preceding provisions of this section, so far as they relate to an authorisation by a member of the British Transport Police Force (including one who for the time being has the same powers and privileges as a member of a police force for a police area), shall have effect as if the references to a locality in his police area were references to any locality in or in the vicinity of any police premises, or to the whole or any part of any such premises.

(10) Where a vehicle is stopped by a constable under this section, the driver shall be entitled to obtain a written statement that the vehicle was stopped under the powers conferred by this section if he applies for such a statement not later than the end of the period of 12 months from the day on which the vehicle was stopped.

(11) A person who is searched by a constable under this section shall be entitled to obtain a written statement that he was searched under the powers conferred by this section if he applies for such a statement not later than the end of the period of 12 months from the day on which he was searched.

(12) Where a constable has carried out a search in the exercise of the power under subsection (4) above he shall make a record of it in writing unless it is not practicable to do so in which case he shall make such written record as soon as practicable after the completion of the search.

(13) Section 60 of the Criminal Justice and Public Order Act 1994 is hereby repealed.

(14) In this section—

“British Transport Police Force” means the constables appointed under section 53 of the British Transport Commission Act 1949;

“dangerous instruments” means instruments which have a blade or are sharply pointed;

“locality” means any place or area not exceeding one square mile which at the time of the authorisation under this section is given the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission or any other place to which people have ready access which is not a dwelling;

“offensive weapon” has the meaning given by section 1(9) of the Police and Criminal Evidence Act 1984 or, in relation to Scotland, section 47(4) of the Criminal Law (Consolidation) (Scotland) Act 1995 and includes, in the case of an incident of the kind mentioned in subsection (1)(b)(i) above, any article used in the incident to cause or threaten injury to any person or otherwise to intimidate; and

“police premises”, in relation to England and Wales, has the meaning given by the section 53(3) of the British Transport Commission Act 1949 and, in relation to Scotland, means those places where members of the British Transport Police Force have the powers, protection and privileges of a constable under section 53(4)(a) of that Act (as it relates to Scotland);

(15) For the purposes of this section, a person carries a dangerous instrument or an offensive weapon if he has it in his possession.

(16) The powers conferred by this section are in addition to, and not in derogation of, any power otherwise conferred.’.

New clause 2—Amendments to Terrorism Act 2000—

‘(1) The Terrorism Act 2000 is amended as follows.

(2) Sections 44, 45 and 46 of the Act are repealed.’.

New clause 4—Authorisations under Terrorism Act 2000—

‘(1) Section 44 of the Terrorism Act 2000 (authorisations) is amended as follows.

(2) In subsection (3), for “may be given only if the person giving it considers it expedient for the prevention of acts of terrorism” there is substituted “must be given in writing and may be given only if—

(a) an event is to be held in an area or place and the person giving it reasonably believes it is necessary to make the authorisation for the prevention of acts of terrorism in that specified area or place;

(b) because of the nature of a specific area or place the person giving it reasonably believes it is necessary to make the authorisation for the prevention of acts of terrorism in that specified area or place; or

(c) the person giving it is satisfied on the basis of specific information linked to an area or place that is reasonably necessary to make the authorisation for the prevention of acts of terrorism in that specified area or place”.

(3) After subsection (3) there is inserted—

“(3A) An authorisation must specify an area or place that—

(a) is no larger than is reasonably necessary to respond effectively to the threat of terrorism; and

(b) is no more than one square kilometre in total.”

(4) In subsection (4)—

(a) for “the whole or part of a police area” (wherever occurring) there is substituted “in a police area”;

(b) in paragraph (a), for “a police officer for the area who is of at least the rank of assistant chief constable” there is substituted “the chief officer of police for that area”;

(c) in paragraph (b), for “a police officer for the district who is of at least the rank of commander” there is substituted “the Commissioner”;

(d) in paragraph (c), for “a police officer for the City who is of at least the rank of commander in the” there is substituted “the Commissioner of”;

(e) in paragraph (d), for “a member of the Police Service of Northern Ireland who is of at least the rank of assistant chief constable” there is substituted “the Chief Constable of the Police Service of Northern Ireland”.

(5) In subsection (4A), for “a member of the British Transport Police Force who is of at least the rank of assistant chief constable” there is substituted “the Chief Constable of the British Transport Police Force”.

(6) In subsection (4B), for “a member of the Ministry of Defence Police who is of at least the rank of assistant chief constable” there is substituted “the Chief Constable of the Ministry of Defence Police”.

(7) In subsection (4BA), for “a member of that Constabulary who is of at least the rank of assistant chief constable” there is substituted “the Chief Constable of that Constabulary”.

(8) After subsection (4C) there is inserted—

“(4D) A person who makes an authorisation must publish, as soon as reasonably practicable and no later than seven days after an authorisation is given, a notice of the authorisation which describes the specified area or place.”.

(9) Subsection (5) is repealed (authorisation given orally to be confirmed in writing).

(10) In subsection (5A) there is inserted—

“authorisation” means an authorisation made under this section or renewed by the Secretary of State under section 46;”.’.

New clause 5—Duration of authorisations under the Terrorism Act 2000—

‘(1) Section 46 of the Terrorism Act 2000 (duration of authorisation) is amended as follows.

(2) In subsection (1), after “under section 44” there is inserted “or renewed by the Secretary of State under subsection (7)”.

(3) In subsection (1), in paragraph (b), for “or at a time” there is substituted “and time”.

(4) In subsection (2), for “or time” there is substituted “and time”.

(5) In subsection (2), for “occur after the end of the period of 28 days beginning with the day on which the authorisation is given” there is substituted “be longer than is reasonably necessary to effectively respond to the threat of terrorism and must not exceed 24 hours”.

(6) Subsections (4) and (5) are repealed.

(7) For subsection (7) there is substituted—

“(7) If an authorisation is given under section 44 in respect of an area or place, a further authorisation cannot take effect in respect of that area or place until after the end of seven days after the previous authorisation ceases to have effect unless renewed in writing by the Secretary of State.

(8) If the Secretary of State renews an authorisation under subsection (7) he or she must lay a copy of the renewed authorisation before both Houses of Parliament as soon as is reasonably practicable.

(9) If the Secretary of State renews an authorisation under subsection (7) on six or more occasions, he or she must, as soon as is reasonably practicable, lay before Parliament a statement explaining why the authorisation has been renewed.”’.

James Brokenshire (Conservative, Hornchurch)

A number of different issues are wrapped up in this clause stand part debate. So far, our discussions on stop-and-search have focused on levels of bureaucracy, the utilisation of the accurate recording of information, and the role of technology. However, there is also a need to focus on the implications of the clause for the effective use of stop-and-search more generally.

In her report on reducing police bureaucracy, Jan Berry said:

“In too many places, police officers’ knowledge and understanding of their powers in respect of stops is poor. Yet there is clear evidence that—where knowledge and understanding is coupled with local intelligence and strong supervision—the quality of stops increases”.

It is important to reflect on that point. If we are seeking to re-codify the information that police officers are to record as part of their stops-and-searches, we should also look at how these powers can be used more intelligently and how police officers’ time can be focused and how we can achieve more effective utilisation of police time more generally. We should take a more focused look at the use of the power. Factors that might militate against this more effective, more intelligence-led use of stop-and-search powers include targets, as well as other bureaucracy and measurement devices.

Jan Berry highlighted that in her report at paragraph 5.103, which stated that

“some forces continue to include the number of stops as personal performance indicators. Not only can this encourage unnecessary stops, but it also harms community relations.”

She made a recommendation that such personal indicators for individual forces should be removed immediately because it created the perverse incentive to conduct more stops-and-searches than necessary. If we are looking at bureaucracy and the utilisation of time, actions undertaken simply to meet a given target would not appear to be an effective use of time.

What steps are the Government taking to implement Jan Berry’s recommendation? What discussions have taken place with individual police forces? What assessment has the Home Office made of the number of police forces that may be applying some sort of target for the number of stops-and-searches that police officers conduct? Clearly it would not be an appropriate or effective way of targeting police resources on intelligence if they were simply tasked with conducting a fixed number of searches and their performance were assessed against that measure.

There is also the issue of Ministers’ confidence that the changes outlined in the Bill will be implemented on the ground. In other words, notwithstanding the target culture that may persist in certain forces at a local level, will individual police forces seek to adopt the measures that are contained in the Bill? It was interesting that in his speech to the police superintendents conference last September, which the Minister and I both attended, the Home Secretary stated:

“Local requirements are often equally, if not more burdensome, and these need to be addressed too. To give one example, while the stop and account form has been abolished, I have heard of instances where neighbourhood police officers are still filling in the form even though it’s no longer required.”

That related to stop-and-account, but what confidence does the Minister have that police forces will not simply choose to ignore the revised reporting requirements in the Bill, which gives the types of information that are to be recorded? What if—the Home Secretary alluded to this at the police superintendents’ conference—police forces continue to record all the data sets that previously subsisted, even though the Bill, to free up police time and reduce bureaucracy, may prescribe that a reduced number of fields are to be recorded?

It would be interesting to hear the Minister’s thoughts on how that measure might be rolled out, and to hear whether he accepts that a culture of bureaucracy and form-filling has grown up under this Government. What measures will the Minister introduce, alongside the proposals in the Bill, to bring about the cultural shift that apparently even the Home Secretary appears to accept will be needed?

Will the Minister confirm whether the details of any unlawful item found during a search will be recorded, notwithstanding the provisions in the Bill? That goes back to the issue of recording intelligence more generally. I accept what the Minister said about his best estimate, in relation to the 12 minutes that might be saved in the exercise of the powers set out in the Bill. Will there be an obligation in such circumstances to record such information about unlawful items in a suspect’s arrest record? In other words, if a search is conducted and an unlawful item is found, whether it be drugs or a weapon, and an arrest is made, presumably there would be a record of that unlawful item in the arrest record. I seek to understand clearly how all those aspects interrelate.

David Hanson (Labour, Delyn)

If it will save time, the answer is yes. Self-evidently, that item would be evidential in any future charge before the courts. Such a record would be made—at the police station, undoubtedly, rather than at the stop-and-search location.

James Brokenshire (Conservative, Hornchurch)

I thank the Minister. The only reason for touching on that point is that it relates to the 12-minute saving that has been identified with regard to not recording certain fields. There is an issue about the analysis undertaken of that 12-minute figure. Obviously, some additional information for intelligence or arrest purposes might have to be recorded in a different way. The issue was whether that had been factored into the calculation of the 12-minute figure.

David Hanson (Labour, Delyn)

The 12 minutes relates to stop-and-search. That does not involve moving to the police station for an arrest or for a charge, so the stop-and-search is where the saving is made.

James Brokenshire (Conservative, Hornchurch)

I am grateful to the Minister for that clarification on the bureaucracy saving and the assessment. I still have some questions on whether 12 minutes fully represents the savings, but I hear what he says and I do not intend to labour that point.

The clause requires the recording of ethnicity when a person has been stopped and searched. That is understandable for the reasons discussed in the previous debate, and I do not intend to go back over all those points, but there is the understandable issue of the disproportionate impact of stop-and-search on minority ethnic communities, with the impact particularly marked for black and Asian communities. Will the Minister say what the requirement in the Bill adds to the existing obligation in code A of PACE? There seems to be some overlap. Is additional information required? Has there been a change? My understanding is that there are already some requirements to record ethnicity in code A of PACE. Does this provision put a new requirement or duty on officers, or are we recodifying or adding to the Bill to give emphasis to what is already covered in the code?

The Minister will be aware of concerns about the use of stop-and-search on very young children. While there is no intention to introduce a formal requirement in the Bill, as I understand it, will the Minister give any indication on whether the issue is being monitored or reviewed? If so, what guidance is being provided to police officers? I recognise that, sadly, many very serious crimes are committed by very young children, so searches of children need to be conducted to assess whether they are carrying knives and other weapons or drugs.

Can the Minister tell us how many stops-and-searches of children there are? Concerns have been highlighted as to whether children are disproportionately affected, although that may be indicative of patterns of offending in an area. As concerns about very young children being stopped and searched have been highlighted, it would be helpful if the Minister responded to them and gave some indication of the use of stop-and-search in relation to young children.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

The hon. Gentleman makes a valid point. We want assurances that stop-and-search is not being applied arbitrarily to young people. What does he hope that the Minister will say in response to his query about monitoring and the frequency with which young people are stopped and searched?

James Brokenshire (Conservative, Hornchurch)

Obviously, it is for the Minister to respond, but it would be helpful to get an indication of whether there has been any assessment of the targeting of stop-and-search. The reports on 10 and 11-year-olds have highlighted the most concern on whether the powers are being used proportionately. What discussions has the Minister had on the matter, what assessment has he made and what guidance exists on whether there are additional sensitivities or requirements that should be applied when a stop-and-search is being conducted of, particularly, very young children?

I turn to the amendment and new clauses in my name and the name of my hon. Friend the Member for Romford. Amendment 21 and new clause 1 relate, in essence, to a modification of the section 60 power in the Criminal Justice and Public Order Act 1994. Section 1 of PACE allows a police officer to stop and search a person in a public place for offensive weapons and other items. However, the power applies only where that police officer has a reasonable suspicion that he or she will find such unlawful items.

Under section 60, an officer of or above the rank of inspector has the right to authorise officers to stop and search people and vehicles within a specific locality for a period of up to 24 hours, if they reasonably believe that crimes of serious violence may occur or that someone is carrying an offensive weapon. That authorisation can be extended for a further 24 hours with the consent of an officer of superintendent rank or above. The power may be exercised without the requirement of reasonable suspicion that would be needed under PACE.

We have believed for some time that there is a need to change those powers. The utility of the powers is clear, especially when we consider the Metropolitan police’s Operations Blunt and Blunt 2, and how section 60 powers have been used to prevent weapons being carried, to provide reassurance and to arrest those who are carrying knives and other weapons in their community, where there has been intelligence and reasonable suspicion that weapons were being carried in a locality. No one in the Committee can be in any doubt about the tragic implications of these issues, which have affected our constituents and many families around the country. A person who carries a knife or another weapon is at more risk of being the victim of a violent offence.

The issue is about using the powers intelligently. I recognise the concerns highlighted about section 60, and there is a desire, as Jan Berry said in her report, to ensure that the powers are used appropriately, sensibly, proportionately and on the basis of intelligence. It is important to reflect on whether there are ways in which the power could be brought closer to communities.

New clause 1 would create a right for officers of the full rank of sergeant to authorise stop-and-search of pedestrians and vehicles in a specific area for up to six hours, if they reasonably believed that incidents of serious violence might occur in that area, or that people were carrying guns, knives or other offensive weapons. That authorisation could be extended to a maximum of 48 hours by further direction of an officer of the rank of superintendent or above.

In some ways, the proposal intends to bring the section 60 authorisation closer to communities on the ground. Its intention is threefold: first, to provide a new preventive power to law enforcement to help to stamp out the possession of illegal weapons and prevent violent crime; secondly, to give police at the operational level greater flexibility to respond to intelligence and potentially fast-moving situations; and thirdly, to underline the importance of community policing, anchored by the police sergeant, and to help to develop confidence within neighbourhoods and areas served by local police teams.

We focus on police sergeants because they are often at the absolute core of community policing in the safer neighbourhood teams around the country. They are most likely to pick up the intelligence on the ground, to hear what is happening in the community and to need to provide community reassurance. The new clause would ensure that they were properly empowered by giving them a limited window of time in which to carry out stop-and-search in their locality. The change is practical, proportionate and common sense, and would help the police to combat violent crime in local communities.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I know that the hon. Gentleman and possibly all other Members here will have been out on patrol with their safer neighbourhood teams, which are ably led by sergeants. When I have been on patrol with teams, sergeants have not suggested that they would like such a power at their fingertips. Has the hon. Gentleman received representations from sergeants about the power?

James Brokenshire (Conservative, Hornchurch)

We have held our view on the modification of section 60 for some time, and when we were considering stop-and-search we discussed the matter with a number of police officers and with the Police Federation, which supported our proposals. That organisation speaks more generally for sergeants and police who are very much at that operational level. We believe that the measure would be useful and practical, and would strengthen the role of community policing on the ground, where the beat or neighbourhood sergeant has a key role. It is about ensuring that practical aspect, but it is also about strengthening and recognising the role that sergeants have at the core of their safer neighbourhood or community police teams, so that they are seen to respond quickly if information is given to them. It would make clear their status and position as the anchor at the centre of a community police team.

Certainly, sergeants are likely to have a closer connection to local issues and people because of the relationship between the community police and the community that they serve, and that should be recognised in the framework, constraints and protection of the existing stop-and-search power under section 60. Trust and greater confidence should be fostered in public police actions.

There should be an emphasis on being intelligence-led, recognising the points that Jan Berry made to the Committee about that, and about bureaucracy more generally. One way to provide greater linkage to the intelligence base would be to make the connection with the police sergeant being given the restricted power that we propose. That underlines the importance of community-based solutions as part of wider measures to tackle violent crime and social breakdown.

A six-hour authorisation for sergeants is therefore appropriate and proportionate. It would give greater assurance to the public with regard to the fight to stamp out illegal weapons on our streets, and in so doing, to reduce the scourge of violent crime that continues to claim far too many lives and blight far too many communities. The power is one part of an overall package of measures that it might be appropriate to use to address our understandable and significant concerns.

My next point relates to section 44 of the Terrorism Act 2000 and new clause 2. I emphasise that this is a probing provision and that I recognise the need for the police to retain the right to use stop-and-search as a means of preventing terrorism. The purpose of the new clause is to facilitate a debate on the issue, and my hon. Friends and I are very clear about that.

David Hanson (Labour, Delyn)

Does that mean that in the event that the hon. Gentleman and I swap positions in the next few months, the Conservative party would not repeal section 44 of the Terrorism Act?

James Brokenshire (Conservative, Hornchurch)

Yes, we are clear that we would not repeal section 44. The new clause is a probing provision to facilitate a debate in the light of the European Court of Human Rights judgment. We seek to promote a debate and to hear what the Minister says about that important judgment, which I will come to in due course. As Lord Carlile said, there is a need for careful consideration of the stop-and-search powers under section 44, and I hope that the Committee’s proceedings, including this debate, will be the start of a move to address the concerns that have been identified following the Gillan and Quinton judgment, as well as other points that have arisen over the past few years. As I said, the purpose of the new clause is to facilitate a debate on the important issue of modifying the law in the light of the European Court of Human Rights judgment in the case of Gillan and Quinton against the United Kingdom, which was delivered just a couple of weeks ago.

There is little doubt about the continuing threat of international terrorism and there is no indication that it will diminish any time soon. Following the events of 2007, with the attempted terrorist attack in the Haymarket in London and the attack at Glasgow airport, there has been a marked increase in the use of section 44 powers. In 2008-09, 256,027 stops and searches were made under those powers—a 36 per cent. increase since 2007-08. However, it is the way in which the power has been used, with whole police force areas designated as potential search areas, that has raised serious concerns.

In his last report to Parliament, Lord Carlile, the Government’s own reviewer of terrorism legislation, was highly critical, noting that the use of section 44 had attracted particular criticism because it had a negative effect on good community relations; that its purpose and deployment were poorly understood; and that it was totally wrong that any person should be stopped to produce a racial balance, but that there was ample evidence that was happening. In that respect, he said:

“It is also an invasion of the civil liberties of the person who has been stopped, simply to ‘balance’ the statistics.”

He noted that there was no need to use the power where existing stop-and-search powers were adequate and that the

“figures, and a little analysis of them, show that section 44 is being used as an instrument to aid non-terrorism policing on some occasions, and this is unacceptable.”

Lord Carlile therefore made some pretty significant criticisms of the use of section 44 in his last report to Parliament. That relates not only to the civil liberties arguments that he highlighted, but to the question of whether section 44 was being used inappropriately.

Putting aside the Court’s judgment in the Gillan and Quinton case for a moment—I am sure the Minister will tell us that the Government intend to appeal it—will the Minister tell us whether he shares Lord Carlile’s concerns and, if so, what practical measures the Government have taken, or intend to take, to address the points raised by Lord Carlile? Does he also agree with the statement of Assistant Commissioner John Yates in the paper he put to the Metropolitan Police Authority? Following consultation with community groups, he said that

“the power is seen as controversial and has the potential to have a negative impact, particularly on minority communities.”

The assistant commissioner recognised the sensitivities attached to the use of this power and, to be fair, I think the Minister does, too.

Although the Home Office has provided guidance on the use of section 44 stop-and-search powers in its circular 027/2008, will the Minister consider updating the guidance, reflecting the comments made by Lord Carlile and the Gillan and Quinton judgment? The circular notes that advice on the geographical extent of an authorisation is provided but suggests, for example, that the boundaries of the authorisation could be as wide as a divisional area or a borough boundary, and that this may be sufficient. Will the Minister give some guidance on whether he has taken a different approach with regard to the authorisation of section 44 powers since Lord Carlile’s comments, or since the case of Gillan and Quinton? There is a requirement under section 44 for the authorisation of the Secretary of State, which is something that the Minister in his role uses and fulfils daily. It would be helpful to hear in the Minister’s response whether there has been any change in emphasis or approach, and whether any greater scrutiny, examination or review has taken place as a consequence of the recommendations and comments made by Lord Carlile and the judgment in Gillan and Quinton.

The judgment in that case has brought the issue even more to the fore. The Court noted:

“The available statistics show that black and Asian persons are disproportionately affected by the powers, although the Independent Reviewer has also noted, in his most recent report, that there has also been a practice of stopping and searching white people purely to produce greater racial balance in the statistics...There is, furthermore, a risk that such a widely framed power could be misused against demonstrators and protestors in breach of Article 10 and/or 11 of the Convention.”

Clearly, the way the powers have been used was a factor for the Court in reaching its judgment that section 44, as currently framed, was outside the convention rights. Has the Minister taken steps to analyse the claims and assessments that section 44 powers are being used to provide greater ethnic balance in their use across different communities? What steps are being taken to examine that claim, assess it further or deal with it?

The Court also concluded that

“the powers of authorisation and confirmation as well as those of stop and search under sections 44 and 45 of the 2000 Act are neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. They are not therefore ‘in accordance with the law’ and it follows that there has been a violation of Article 8 of the Convention.”

That was the nub—the conclusion of the European Court of Human Rights in relation to section 44. The Government have said that they are examining options for a potential appeal against the judgment. Although an appeal is not certain—as we heard from the Minister last week—legal advice is being sought in relation to section 44. The Minister suggested during last week’s evidence session that the Court judgment was out of date, that its assessment was based on the historical use of section 44, that use had changed since the circumstances giving rise to the judgment and that the case in point related to events and circumstances in 2003.

It is certainly true that the Metropolitan police have adopted a new, three-layered tactical deployment model for using Terrorism Act powers, with section 44 powers focused on sites across London that are of

“an iconic nature and/or key strategic importance”.

Stops and searches in the Metropolitan police area during the first quarter of 2009-10 were down by 37 per cent. compared with the same quarter in 2008-09.

However, the judgment is specific that the Act’s sections are not sufficiently circumscribed and do not provide sufficient safeguards. Therefore, according to my reading of the Court’s judgment, along with the legal advice that has been provided to various Members and other inputs to the Committee, even if the practice may have changed, it does not address the specific points made by the Court. In other words, the focus was very much on section 44 as written in law, rather than the use of that power on a practical basis, although that may have informed the Court’s judgment on whether the powers as drawn were sufficiently circumscribed to be within the ambit of the convention rights.

We believe that the Government should accept the Court’s decision and start an urgent review and consultation process on appropriate changes to the provisions of the Terrorism Act to address the issues highlighted by the Court. There is clear uncertainty, and the period of that uncertainty should be minimised. In that context, I welcome Liberty’s contribution to the debate and its suggestions on authorisation requirements, duration, geographical extent and other proposed amendments to section 44. Liberty’s proposals are in large measure reflected in new clauses 4 and 5, tabled by the Liberal Democrats.

Those proposals require greater scrutiny and consideration to ensure that the powers are proportionate and circumscribed in relation to the operational requirements of the police, who need to ensure that we remain protected against the pervasive terrorist threat, which, sadly, we will continue to be subject to in this country for some time. I will listen carefully to the Minister’s thoughts about why the Government feel that Liberty’s proposals are not appropriate, reasonable or in compliance with the European convention rights, and about why they think that the proposals may not work. In the light of the Court judgment, careful and sensible reflection is needed on the section 44 powers to ensure that they are suitably circumscribed.

It is important that there is urgent consultation with relevant stakeholders on all sides—the police, security services, civil liberty groups and the community as a whole—to assess what changes are appropriate and proportionate, taking account of the need to strike the right balance between personal freedoms and public protection. It is clear that some change to the law is necessary. The Government should accept that and start the process of reform. Inaction will simply further erode confidence in this important tool and, in so doing, make us all that little bit more unsafe.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I rise to speak briefly to new clause 1, tabled by the official Opposition. The hon. Member for Hornchurch has made a coherent case, as always, for giving additional powers to sergeants. However, it is also possible to make a coherent case against giving those additional powers. Judges have ruled that there is a risk of arbitrariness in relation to section 44.

The hon. Gentleman proposes to extend stop-and-search powers. Earlier, he rightly flagged up possible concerns about the use of stop-and-search as it relates to young people, and he posed a list of sensible questions for the Minister about the monitoring of that system. My concern is that without a review of stop-and-search that encompasses not only section 44 but goes wider, his proposals might lead to more rather than fewer concerns about the way stop-and-search operates. Again, I shall listen to what the Minister has to say, but at the moment I am agnostic about the proposal.

As the hon. Member for Hornchurch pointed out, Liberty has been keen to promote the proposals in new clauses 4 and 5, which were tabled by Liberal Democrat Members. When we debated the matter on Thursday I expressed concern that the Bill was not being used as an opportunity to deal with the section 44 issue—the clear risk identified by judges of arbitrariness in the deployment of those provisions. The new clauses would constrain, or at least contain more effectively, the stop-and-search powers currently deployed under section 44 of the Terrorism Act. I hope they would address the concerns identified in the ruling in question.

The Minister rightly pointed out that the area in which stop-and-search is being deployed has been reduced. It is not applied as widely as it was. Perhaps the problem that presents to the Minister is that it underlines the fact that the provision was previously applied in a blanket way, or a less contained way. Can he be entirely confident about how the section is being applied, even though the area of application is more restricted? It is still perhaps being applied more generously than required. The Minister has said that he considers each case individually, and I am sure that he does so very carefully, but so far he has not, I think, refused any applications.

The new clauses are intended to constrain and contain, and to define more precisely the area over which stop-and-search can be operated, as well as the length of time over which it can be applied. I hope the Minister will respond to them as sensible proposals. He may be able to deal with my concerns about the current arbitrariness, but he will have to work hard to convince me that the powers as they are now being applied are innocent of any degree of arbitrariness.

I hope the Minister accepts that the new clauses would enable section 44 to be applied more rigorously, and would address the issue of arbitrariness, which the Government will have to do at some point. They give the Minister an opportunity to deal with the issue in the Bill, rather than at a later date. Probably all hon. Members—and certainly all Opposition Members—accept that it will have to be dealt with at some point in the near future.

Tony Baldry (Conservative, Banbury)

From time to time I get a telephone call that goes something like this: “Hi, Dad. What do you know about the Terrorism Act 2000?” I say, “Well, I probably voted for it. Why?” “ Well, Dad, I’ve just been stopped yet again under the Terrorism Act.”

My slight concern, in a debate on stop-and-search, applies particularly, I think, to the Metropolitan police. There is confusion about using the Terrorism Act to deal with terrorism or suspected terrorism and its use to deal with public order offences or public order matters. As Members of Parliament, all members of the Committee are, by definition, political activists and I suspect that there is not a single one of us who has not taken part in a demonstration during our political career. Even my hon. Friend the Member for West Chelmsford must at some stage have taken part in a demonstration.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I took part in the Countryside Alliance march.

Tony Baldry (Conservative, Banbury)

Indeed. My right hon. and learned Friend took part in the Countryside Alliance march. I demonstrated outside the Russian embassy complaining about the Russian invasion of Czechoslovakia. It is difficult to see why, for example, everyone at the climate change camp was stopped, searched and processed under the Terrorism Act. I shall give the Minister a present—a book published by my son and some others entitled “Excessive Force”. If the Terrorism Act is overused to deal with public order matters and policing demonstrations and protests, my first concern is that it is not a particularly effective use of that power and, secondly, that it alienates large numbers of young people, not just from the police but from the whole democratic and political process.

My hon. Friend the Member for Hornchurch has made a number of extremely good points. If one does not get stop-and-search under terrorism legislation into a proper sense of proportion, as opposed to stop-and-search under other legislation for other needs, it will lead to sloppy policing. The police will rely too heavily on terrorism legislation and use it as a sledgehammer when they should be using other legislation. It will also lead to alienation. We all rely on policing by consent, and all sections of the community should believe that they are policed properly and in a way that commands their support.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I rise to support the general points made by my hon. Friend the Member for Banbury with whom I have worked many times, including at the Ministry of Agriculture, as it then was, but I shall also express some caution about new clause 1. I am always on the civil libertarian wing of any argument, because I am conscious of the degree to which powers are abused. I have said this before to the Committee and I fear that I shall say it again: we must be very careful about giving away powers and hedging them about with restrictions.

When I look at new clause 1, I have to ask whether we are showing the necessary degree of caution. Under subsection 5, a constable may stop any person or make any search

“whether or not he has any grounds for suspecting that the person or vehicle is carrying weapons or articles”.

In other words, you could be strolling down the road entirely innocently, Mr. Cook, as I am sure you would be, but the subsection gives the constable powers to search you. What is more, under subsection (7), should you not stop and oblige—although I am sure you would—you are committing an offence in respect of which you can be sent to prison.

Those are the effects of subsections (5) and (7). Who can give that extended power to search and stop, and in what circumstances? It is a police officer with the rank of sergeant. I do not intend to be rude about people, but that is not an elevated rank. Sergeant is an important rank, but it is not a senior officer. It is perfectly true that a sergeant could give that power only for a period of six hours, but should you be caught during that period, Mr. Cook, you would be pretty cross if you knew that the authority stemmed from a sergeant.

In what circumstances could a sergeant reasonably believe that a dangerous instrument was being carried? Come, come, what is a dangerous instrument? Someone who goes to the ironmonger to buy a carving knife or to John Lewis to buy a fork will, in theory, have a dangerous instrument. I tend to go to the Alps every year. When I come back, I will be carrying an ice axe and crampons, which are dangerous instruments. I do not like giving sergeants the power to say, “Mr. Hogg has got himself a crampon and an ice axe. Those are dangerous instruments. I think it’s expedient to extend the powers of search.” Well, that is not the kind of society I want to live in.

David Hanson (Labour, Delyn)

I will not labour the point, but I think there is general agreement that clause 1 will ultimately help to reduce bureaucracy. If the Committee and the other place agree to the clause, we intend to pilot changes with a representative number of forces for at least three months, and clause 45, which we will deal with later, makes provision for that. I hope that we will ultimately be able to agree that clause 1 should stand part of the Bill.

I accept the points that the hon. Member for Hornchurch made about the implementation of the stop-and-account form to date. He will be aware that we changed the stop-and-account requirements 12 months ago, and the number of stops made should not be used as a performance measure for individual officers. That change should be implemented in our 43 forces and in the British Transport police.

I am disappointed that not all our objectives have been met. We rely on implementation by chief officers, and implementation is very much supported by the Association of Chief Police Officers. However, I fully accept that delivery on the ground is lagging in some areas. I hope that the hon. Gentleman recognises that problem and shares our objective of solving it in due course.

ACPO is fully supportive of the measures before us. The pilot that we intend to carry out to implement the changes will look at the real-world impact and will wrap up the concerns about stop-and-account forms.

I should also tell the hon. Gentleman that the target we have set for increasing public confidence in policing reflects operational practice on issues such as the implementation in due course of clause 1, if it is approved, and the implementation to date of the changes to stop-and-account forms. I want us to reduce use and to agree quickly to abolish the stop-and-account form in practice as well as in theory. I hope that that reassures the hon. Gentleman.

The hon. Gentleman commented on the use of stop-and-search powers in relation to young people. I am afraid that I cannot give him any figures today to indicate exactly how often stop-and-search or stop-and-account powers have been used against people under 18, but they will be used for the simple reason that there are, sadly, people under 18 who carry knives or guns and who are involved in drugs. The police make, and will continue to make, operational judgments at a local level about whether to exercise their powers accordingly. Although we do not have the figures, these powers will remain a valuable tool to enable the police to secure protection for the community and sometimes for individuals under 18.

James Brokenshire (Conservative, Hornchurch)

In some ways, I am not surprised by the Minister’s response. There is concern about the utilisation of the powers, particularly where very young children are involved, which is the point I emphasised. Can the Minister give any indication of whether the Department provides guidance on stops and searches of very young people? Sadly, I recognise his point about the carrying of weapons. In some cases, gang members may use a younger child to carry a weapon on their behalf because the child is below the age of criminal responsibility. That is a serious issue that can be exploited by those with severe criminal intent. It would be helpful to hear the Minister’s response.

David Hanson (Labour, Delyn)

Self-evidently, there are people under the age of 18 who may carry weapons or other equipment for use in criminal activity. That is precisely the reason why the stop-and-search power has to be used by police on an operational basis under both current and—if the clause is accepted—new legislation. We cannot give the figures, but use of the power is judged locally and the police wish to continue to use it. I hope, therefore, that the Committee accepts the principle of the clause.

New clause 1 was tabled by the hon. Member for Hornchurch and would replace section 60 of the Criminal Justice and Public Order Act 1994, which enables an inspector or above to authorise the stop-and-search of persons or vehicles when there is a reasonable belief that incidents involving serious violence may, or have, occurred and it is expedient to give that authorisation. I cannot do better than endorse the comments of the right hon. and learned Member for Sleaford and North Hykeham. He explained that the reason why an inspector authorises section 60 searches is that we want to ensure that the public have confidence that the decision is taken at a senior level in the force. Moreover, with no disrespect to sergeants or to officers of lower rank, we want to ensure that the authorisation is not something that is done routinely, but requires senior-level endorsement.

My fear, which I hope the hon. Member for Hornchurch will reflect upon, is that new clause 1 could reduce public confidence in the use of searches and give rise to searches that will not receive the serious, high-level endorsement that the rank of inspector would give them. There is no evidence to date that the involvement of an inspector in authorising searches has given rise to slowness or to any criminality that would not have occurred anyway. That level of rank is not, according to the evidence, a bar to undertaking effective searches under section 60. Indeed, it is common practice for inspectors orally to approve their authorisation—as do I sometimes on section 44 applications—before later issuing a written confirmation. There may be concerns about the use of stops and searches, but diluting the authorisations and lowering the grade of the officer who can authorise them is not a productive suggestion. I hope the hon. Gentleman will reflect upon that, listen to the advice of his right hon. and learned Friend the Member for Sleaford and North Hykeham, and not press the new clause to a vote.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

Does the Minister, like me, think it appropriate that the hon. Member for Hornchurch should make some estimate of how many additional stops and searches might arise if the change was implemented?

David Hanson (Labour, Delyn)

The hon. Gentleman makes a valid point. The issue is about reducing bureaucracy and removing measures so that the police have more time for activities that are more productive for the public. We may well encourage further use of the powers if we devolve them to the front line. Current legislation ensures that someone has to justify a request to an inspector who then has to authorise it, so it is done at a senior level. The points made by the right hon. and learned Member for Sleaford and North Hykeham are therefore extremely valid.

There is a serious debate on section 44, and amendments have been tabled by both the official Opposition and the Liberal Democrats in relation to it. We need to address some of the concerns. Section 44 is an important tool that we have encouraged and used, and it provides a definitive, clear accountability line for the approval of stop-and-search powers, through Parliament and external scrutiny.

As Committee members know, any section 44 agreement must first be approved by a member of ACPO—a senior officer—and that approval must be applied to requests for such operational activity to be undertaken. Those requests are submitted and looked at by officials in the Home Office, through the Office for Security and Counter Terrorism, and reported to me. As I mentioned in my evidence to the Committee last week, I have to scrutinise an application and ultimately sanction it within 48 hours or it does not apply. That process is open to public scrutiny by Lord Carlile of Berriew, who undertakes regular scrutiny and is continually looking at the extent, usage and proportionality of the boundary. An appeal is currently being considered on a judgment made on the use of that power generally. All those things aside, there is real parliamentary and independent oversight on the use of section 44. Its proportionate use is justified as part of a deterrent for individuals who potentially could undertake terrorist activity in the United Kingdom.

James Brokenshire (Conservative, Hornchurch)

The Minister mentioned the Government’s reviewer of terrorism legislation, Lord Carlile. Following the Gillan and Quinton judgment, Lord Carlile gave an interview to the BBC, suggesting that a change to the law may be required and, reflecting on his previous comments, again expressed concern that section 44 was still used far too randomly without any reasoning. What response would the Minister give to the concerns expressed by Lord Carlile in the context of the latest judgment? There are some serious issues to consider.

David Hanson (Labour, Delyn)

There are indeed. The terror threat in the United Kingdom is currently rated severe: that threat level was raised by the independent Joint Terrorism Analysis Centre, which makes recommendations about the level of threat and Ministers have to respond to that. JTAC independently decided the threat level a week ago last Friday. There are serious issues to do with the terrorist threat, and the use of section 44 is part of our proportionate response to that.

Self-evidently, we are disappointed with the ECHR ruling in the Gillan case, which the hon. Member for Hornchurch mentioned. We won challenges in that regard in the UK courts, including in the House of Lords, and we have sought the referral of the case to the Grand Chamber for an appeal, on the basis that we believe that the provisions are proportionate.

Lord Carlile regularly raises a number of issues with the Government, on which we reflect and which, as has been shown, we have considered carefully over the past 12 months. The totals for section 44 power usage over the final quarter of 2009-08 show that there has been a 42 per cent. quarterly decrease in their use over the previous quarter. That does not get away from the fact that 256,000 people were stopped by the police under section 44 in 2008-09 in Great Britain, but it is still a decrease over time and the decrease is continuing. At the level of officials and the police, and including Lord Carlile and myself as Minister, we are continually ensuring that the use of that power is proportionate. I defend the use of that power to the nth degree, because it acts as a deterrent for potential terrorists, it can provide security to our communities and it proves a valuable tool for the police to help to prevent the type of atrocity that every Committee member would not wish to see in London or elsewhere.

The hon. Member for Banbury raised legitimate concerns about the experience of young Baldry. I look forward to receiving the present of the book, and I will find time on my three-hour train journey home to flick through its pages. I appreciate the way in which he expressed his view. Professional practice guidance entitled “Practical Advice on Stop and Search in Relation to the Terrorism Act” has been produced by the National Policing Improvement Agency. I have a copy of the guidance, which I understand is a public document, before me for ease of reference, and page 14 states:

“Officers should always use objective criteria to select people for search. Criteria could be related to...The individual themselves; To the location the person is in; A combination of the two. Every person searched under section 44 should be told explicitly that they are not suspected of being a terrorist.”

The searches that are undertaken are random. Operationally, police may make judgments and I will happily consider the experiences of the family of the hon. Member for Banbury. However, there is clear guidance throughout that document about how this power should be used. I commend those considerations to the Committee.

James Brokenshire (Conservative, Hornchurch)

On the guidance, the Minister will note that I also referred to a Home Office document that sought to prescribe certain information on extent and utilisation of power. What are his thoughts on applications under section 44 that might specify, for example, an entire police force area as an area requiring authorisation to search? The Metropolitan police have moved away from that in their refocused objectives in relation to section 44, but clearly those applications might be coming before the Minister and it would be helpful to understand his reading of the guidance and whether he is looking more carefully at applications that have such a huge geographical coverage in relation to certain police force areas.

David Hanson (Labour, Delyn)

Without giving away too many secrets in a public place, very few whole-force applications come before me as Minister. Most of the applications are related to specific geographical areas or a location in a geographical area where a specific individual might be at a particular time. So I think that the whole-force approach is being reduced. The hon. Gentleman will know that we have taken a keen interest in the matter at an official level through Lord Carlile and myself, as Minister, to ensure that we reduce the number of whole-force applications. That has been shown to work in relation to the police themselves making fewer such applications, certainly over the past year and noticeably in the Metropolitan area.

Tom Brakerose—

David Hanson (Labour, Delyn)

That neatly segues me into the amendments of the hon. Member for Carshalton and Wallington. I will give way to him before I proceed further.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

Before the Minister segues, without breaching confidences or referring to a specific case, can he explain in what circumstances a whole-force application is appropriate and in what way it is useful for the police to have a whole-force application in force?

David Hanson (Labour, Delyn)

Again, without giving away specific confidences, I cannot recall the last time I agreed a whole-force application. Such applications are now targeted around specific areas and locations that I do not need to go through, but that will be self-evident to hon. Members. Whole-force applications are restricted to a small number of forces, which have asked the Government via their senior officers for section 44 applications. There are a number of key areas where we have done that in specific forces, but many forces have not applied at all for a section 44 during the course of their consideration of these matters.

That leads me to the amendments tabled by the hon. Member for Carshalton and Wallington, which deal with two specific issues. First, limiting the geographical extent to a designated 1 km area would again be very difficult. Let me give a concrete and practical example. There could be a threat to a geographical area, such as the City of London. If we have a 1 km application, there may need to be searches in a range of areas outside the 1 km that covers, for example, the City of London. I can think of numerous examples where a wider stop-and-search would be necessary to be proportionate and to ensure that the objective is achieved. The objective is effectively not necessarily even to catch terrorists, although that might be a by-product, but to ensure that people who might be committing terrorist offences know that there is potentially an opportunity for them to be stopped. That is a deterrent. The way to stop terrorist activity ultimately is through intelligence-led activity and a range of other measures downstream, and the provision remains a valuable and important tool. In key areas around Westminster, central London, airports, military sites and so on, geographical restriction would cause severe difficulty for operational flexibility, and it would not be supported by the police or the Government.

Revised guidance has been issued, and there is guidance on how the power should be used. We will certainly reflect, as we must do ultimately, on the judgment of the European Court of Human Rights. We must consider whether we can appeal against it and, if we cannot or we lose, whether to amend the legislation at some future stage. At the moment, we must consider the operational capability of forces for my officials and I to make those judgments. The police must be aware that there is public concern about ensuring that we are not undertaking extraneous stops and searches.

If I accepted the amendment tabled by the hon. Member for Hornchurch, the power would stop tomorrow, and if I accepted the amendment tabled by the hon. Member for Carshalton and Wallington, I would restrict the power severely. I do not want to do either, because my objective is to ensure that people enjoy this great city and other iconic and important areas without the threat of being killed by random terrorist violence.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

In case the Minister was not intending to touch on new clause 5, and following his specific comment on the 1 sq km issue, will he comment on the new clause, which relates to the time over which section 44 may apply?

David Hanson (Labour, Delyn)

Indeed, I will. Reducing the duration of the authorisation from 28 days to 24 hours could be damaging. Counter-terrorism operations may continue beyond 24 hours. Ministerially, at official and police level, I might be signing 28 or 29 section 44 agreements in a month, instead of a fixed time. I do not believe that new clause 5 is practical. At the moment, I sign a reasonable number of section 44 agreements during a week. During that 28-day period, the police may have to undertake stops-and-searches around some ordinary, established, fixed sites. I need not go into details, but there are locations where people live and work, and locations with critical national infrastructure. When I sign a 28-day section 44 application for such areas, I am giving the police the power to undertake searches during that 28-day period. I do not want to have an application in my red box every night, much as I love getting it, for a section 44 agreement for the same location, which must be signed every day because it is a key, iconic location or an individual resides there. The amendment is not practical, and I ask the hon. Gentleman to withdraw it.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

Can the Minister say anything about the typical or average duration—I know that there will not be a typical section 44 application—for which it applies? That might give hon. Members a better idea, if 24 hours is not appropriate, of another time frame that addresses what the Minister is saying about not having to deal repeatedly with section 44 issues?

David Hanson (Labour, Delyn)

I continually renew some section 44s at the end of every 28-day period because they are effectively permanent section 44 agreements, but under the legislation they must be renewed every 28 days. Again, they self-evidently involve areas or matters that need to be covered, but I do not want to go into detail because that needs to be done securely. I cannot accept that we should limit a section 44 to a specific period, because there are areas that the police advise me need regular monitoring and section 44 stops because they are iconic.

James Brokenshire (Conservative, Hornchurch)

I think the Minister accepts that reasonable concerns have been highlighted. For example, there is concern about stopping and searching individuals—knowing that that individual is not under suspicion of terrorism and that there is no likelihood or probability of anything being revealed by a stop-and-search—on the basis of trying to achieve a different ethnic balance in the number of stops-and-searches that are being undertaken. Indeed, some reports on the use of stop-and-search powers have been widely publicised; for example, stopping photographers from taking photographs and various other things. The Minister seemed to suggest that he may take further steps, or that further arrangements may be in place at a practical level, to try to address that with individual police forces. Did I understand him correctly, or is there some other step or action to which he was alluding?

David Hanson (Labour, Delyn)

We keep the use of section 44 under constant review. Any section 44 application that I receive has been authorised by the ACPO-level official. It will contain the usage of that section 44 agreement in previous months. That gives me some indication of how many stops-and-searches there have been.

James Brokenshire (Conservative, Hornchurch)

It is not the number, but the way they have been used.

David Hanson (Labour, Delyn)

The stop-and-search application is very comprehensive under section 44. It gives me an awful lot of detail about a range of issues that I cannot go into in Committee, in the sort of open sitting that we have today. However, under that legislation, we discuss at official level with the police ministerial questions about the application and, ultimately, once it has been agreed, it receives external scrutiny from Lord Carlile. That external scrutiny is ultimately published, with his comments on both individual force’s applications and general applications. In my view, therefore, there is scrutiny.

We are considering the current judgment, and looking to appeal against it. We will reflect on the outcome of that in due course and may well make changes accordingly in operation and/or in legislation, depending on that outcome. However, at the moment I am satisfied that there are sufficient scrutiny powers available to Ministers and externally to ensure that we do that in a positive way. Indeed, the Met police have worked with Lord Carlile since the last report in summer 2009 to change the practice around authorisations so that we do not have a patchwork system and we only authorise, as I have said, iconic sites, crowded places and particular events.

It is possible for a section 44 to be authorised for one day. I am not denying that that could be the case. There could be a section 44 agreement around an iconic event like the Notting Hill carnival. There could be a three-day section 44 agreement around the Labour party conference in Brighton because, self-evidently, that is a potential area of concern. However, that does not mean that we have to have that as a maximum and have to renew it every time. The application could be for a certain number of days. We just need to bear that in mind and remember that this is all done for a purpose, and the purpose is to ensure that we do not have terrorist activity. I therefore urge the Committee to accept the clause, and reject the amendments in the name of the Opposition Members.

Frank Cook (Labour, Stockton North)

If a Member seeks the attention of the Chair, then indicate it clearly by standing.

James Brokenshire (Conservative, Hornchurch)

With the leave of the Committee, I rise to respond briefly to the Minister. As I said from the outset, it is not my intention to press the new clause relating to section 44. The debate on the Terrorism Act 2000 has been helpful in obtaining further information on the Government’s thinking on the response to the Gillan and Quinton judgment. However, there are issues about the application of the section 44 power. There will need to be careful reflection on that judgment—I believe that some changes to the law are an inevitable consequence of it. Therefore, rather than seeking to appeal, the Government should reflect on that to ensure that confidence and certainty are applied to the use of the section 44 powers.

It was also helpful to hear how the Minister of State intends to pilot the changes to the stop-and-search powers that have been identified in clause 1, and that he accepts both the problems that were identified in the implementation of the changes to stop-and-account some 12 months ago, and the problems that remain. That goes back to the cultural changes that I talked about earlier, and to how the burdensome bureaucracy under this Government will have an impact on making the changes needed to speed up police operations and reduce the effect of forms and recording requirements.

I have heard what the Minister of State and other members of the Committee have said on the modification to section 60 proposed in new clause 1. In response to the point made by the hon. Member for Carshalton and Wallington, the measure might reduce the number of searches by being more intelligence led, and focusing on the intelligence-based approach. It would push powers down to the community level and therefore be more responsive to the community’s needs, rather than adopting a blanket approach.

I have heard the strongly held views of my right hon. and learned Friend the Member for Sleaford and North Hykeham on certain aspects of the new clause and on police sergeants, but I do not share them. I imagine that he would have been party to the discussions on the Criminal Justice and Public Order Act 1994. Some of the provisions that he has mentioned are simply a mirror of those in that Act, which I presume he may have debated, considered or approved at that time.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I may have voted for the provisions, but I certainly was not party to the discussions; I was then working in the Foreign Office.

James Brokenshire (Conservative, Hornchurch)

I am pleased to hear of my right hon. and learned Friend’s work at that time in the Foreign Office—I am sure that he was doing a sterling job. It is interesting, therefore, if his views on section 60 have changed since he voted at that time.

I have listened to the debate. We believe that the power proposed in new clause 1 could be a helpful addition. However, in the interests of promoting discussion on other areas, I will not seek to press the new clause to a vote.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

Clearly, I am disappointed that the Bill has not been used to address the arbitrary application of section 44, but I recognise that that was never going to be the case because the Government are considering an appeal against the European Court. I am sure that we will return to the content of new clauses 4 and 5 at some point, when the Government inevitably have to consider making changes to section 44.

Clause 2

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I beg to move amendment 53, in clause 2, page 2, line 25, leave out ‘before or’.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss the following: amendment 56, in clause 2, page 3, line 25, leave out ‘before or’.

Amendment 57, in clause 2, page 4, line 10, leave out ‘before or’.

Amendment 60, in clause 3, page 5, line 10, leave out ‘whether before or’ and insert ‘and’.

Amendment 61, in clause 3, page 5, line 13, leave out from ‘Wales’ to end of line 14.

Amendment 62, in clause 3, page 6, line 7, leave out ‘whether before or’ and insert ‘and’.

Amendment 63, in clause 3, page 6, line 10, leave out from ‘Wales’ to end of line 11.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

My amendments fall into two groups. The first three propose the omission of the words “before or”, and the last four are directed at clause 3. I shall speak briefly on both clauses.

So far as the removal of “before or” is concerned in amendments 53, 56 and 57, I shall use as an example proposed new section (5A) in clause 2, which similarly applies to other provisions. It states:

“The fingerprints of a person may be taken without the appropriate consent if (before or after the coming into force of this subsection)”.

I say, strike out “before or”. In other words, I want to disallow the provision that enables fingerprints to be taken in respect of matters that have occurred before the proposed new section comes into force. In the end, it is a matter of judgment. There is an element of retrospectivity in enabling the police to take fingerprints where the right to do so has arisen before the provision comes into force. I can see the pragmatic arguments for allowing that to happen, but I am rather against it because it involves some retrospectivity, and that is the justification for the removal of those two words by the amendment.

The other amendments—amendments 60 to 63—are more serious. Here we need to consider clause 3(1) and proposed new subsection (6D) of section 61 of PACE. In section 61, on fingerprinting, the following is to be inserted:

“Subject to this section, the fingerprints of a person who is a United Kingdom national or resident may be taken without the appropriate consent if—”

Here we come to the bit that I object to. I will first indicate what I object to, and then I will indicate what I want to happen, which my amendments would bring about if they are voted for. What I object to is the following:

“under the law in force in a country or territory outside England and Wales the person has been convicted of an offence under that law (whether before”—

I object to that—

“or after the coming into force of this subsection and whether or not he has been punished for it)”.

The new subsection continues:

“the act constituting the offence would constitute a qualifying offence if done in England and Wales (whether or not it constituted such an offence when the person was convicted)”.

I pause there. Clause 3(1), to which I have objected, involves a degree of retrospectivity. The phrase in clause 3(1),

“whether or not he has been punished for it”,

means that the power to take fingerprints is attached to some pretty minor things. In addition, so far as proposed new subsection (5A)(b) of section 61 is concerned,

“whether or not it constituted such an offence when the person was convicted”

means, in fact, that a person could be convicted of an offence abroad and, notwithstanding the fact that such conduct was not at that time an offence under the law of England and Wales, the power to take fingerprints arises.

As I say, I always stand on the liberal wing of these arguments. I am in favour of civil rights; I do not like to see them being encroached on, although that sometimes puts me in a position contrary to that of my hon. Friends and others. I am against the powers of the police being extended in the ways that are proposed. I ask myself whether there is a good justification for this extension of police powers. Well, if I were a policeman, no doubt I would think that there was some justification, but I am not a policeman. I represent the citizen, and I do not want the power of the police, as against the power of the citizen, extended willy-nilly whenever the opportunity arises. I want to protect the citizen.

I am not being personal about the officials on the Treasury Bench; I assume that this measure is none of their responsibility. But I know full well that Government Departments will take every opportunity to extend the powers of the law enforcement agencies. People like us need to resist that continually and protest, saying, “This is wrong”.

That is why I am drawing attention to what I think are the defects in the Bill. I have no doubt that the Government will say, “Oh, it’s only Mr. Hogg; he’s trying to frustrate the natural desires of police to extend security,” and all the rest of it. I jolly well am. I know full well that the police will always seek to extend their powers when they get the opportunity to do so. This is a Christmas tree Bill—we know that. It has one or two important clauses, but the Home Office has come forward with lots of others that it has, no doubt, had in its back locker for a long time, and people like us ought to say, “What is your justification? What is the protection offered? Why do you want to do this? Is the power retrospective? Does it infringe natural justice?” If the answer to any of those questions is that we should not be introducing the power, we should not do so.

James Brokenshire (Conservative, Hornchurch)

I rise in response to the understandably impassioned speech of my right hon. and learned Friend. I know what strong views he holds on the need to protect civil liberties. Perhaps there are distinctions that need to be drawn between the three different characteristics that are dealt with in clauses 2 and 3. They are the distinctions between arrest, charge and conviction—

Frank Cook (Labour, Stockton North)

Order. I am sure that the hon. Gentleman’s enunciation and pronunciation are perfectly clear to everyone, but comments should be made through the Chair and, I suggest, that means to the Chair.

James Brokenshire (Conservative, Hornchurch)

Thank you, Mr. Cook. I will certainly take your advice on that issue.

There is a need to focus on the three different aspects covered in the clauses: arrest, charge and conviction. The case for retrospection is clear where someone has been convicted of an offence. One criticism that we have made is that because of the previous blanket approach to taking DNA data and creating profiles, there has not been sufficient focus on achieving safety and security. Those are some of the debates that we will have in relation to various aspects of the Bill.

Looking at patterns of offending and persistent, prolific offenders, there are strong arguments that in not taking the DNA of a person who has been convicted of an offence, one is not following through on solving crime and bringing offenders to justice. One makes a distinction; we are subject to the rule of law, and we as a democracy and a Parliament take the view that if a person commits an offence, that creates a slightly different status for them in civil society, in terms of the way in which the law relates to them.

I hear the wider concerns about retrospection that might otherwise apply. I agree with my right hon. and learned Friend the Member for Sleaford and North Hykeham that we need to be careful in the use of retrospection in legislation. For the purposes of preventing crime or bringing crimes to justice, it is accepted that there is a preventive effect in addressing crime by focusing on persons convicted of an offence, whether they are in prison or have been released.

My right hon. and learned Friend has a point in connection with persons who have merely been arrested; it would be beneficial to hear from the Minister about the application of retrospection to persons arrested. It seems odd that retrospection could be applied even if no charges were brought, and could apply even further back than it would do under other provisions—even including those contemplated by the Government in the Bill—under which the DNA or sample retained at the time of the arrest is to be destroyed or disposed of. It is essential to get the interrelationship between the three categories right, so that there is clarity about how the relevant parts fit together, and so that we do not give an open-ended power, by virtue of retrospection, in relation to arrest. That is a legitimate and reasonable point made by my right hon. and learned Friend.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

My hon. Friend persuades me on the point arising from conviction. As I understand it, he broadly agrees with me about arrest. What does he say about charging? Where a chap has been charged, but not convicted, does he agree with the retrospectivity point that I have advanced?

James Brokenshire (Conservative, Hornchurch)

My right hon. and learned Friend will see in further debates, and amendments that I have tabled, that there needs to be consideration of the timing. The matter should not be completely open-ended. If a charge has been brought and someone has been acquitted or the charges were dropped, it is legitimate to ask why the police should be able to take, in a broad swathe, the person’s sample or fingerprints. We shall need to come back to that in a future debate.

The power needs to be properly circumscribed, and it does not appear to me from the clause that it is. Perhaps there are other provisions in the Police and Criminal Evidence Act 1984, which are not referred to because the Bill does not affect them, that might address the issue. However, I am not aware of any such provisions, and on my reading of the clause, that does not seem to be contemplated, even if one were to take the Government’s approach to six-year retention of DNA profiles and the destruction of DNA material. The issue is the interrelationship of all the powers. It is important to get that right. We need to understand the intention behind the provisions, and what the ambit or extent is of the power that the Government intend to give the police for the taking of samples in this context.

The other important point made by my right hon. and learned Friend was about the interrelationship between what might be unlawful in this country and what might be unlawful in a different jurisdiction. He highlighted the question of whether retrospection might apply, and whether under the clause that would mean that an event that was unlawful overseas would, at that time, also have been unlawful in this country. That is a question of the drafting making the intention clear.

Some important points have been made, and my right hon. and learned Friend’s amendments are useful in teasing out some of the detail. There are still question marks about the drafting of the clauses, and it would be highly beneficial to hear from the Minister about their intention and scope.

David Hanson (Labour, Delyn)

I shall try to complete my remarks before 1 o’clock, so that we can resolve the issue. It might surprise the right hon. and learned Member for Sleaford and North Hykeham to know that I, too, am on the side of the citizen, and that the clauses are framed as they are to ensure that we help to protect citizens through the collection of samples from individuals who are convicted.

The hon. Member for Hornchurch spoke about the amendments to clause 3—amendments 60 and 61, I think. Basically, individuals who have serious convictions may well be in prison overseas—or in Scotland or Northern Ireland. I think that there was acceptance in that, and I am pleased to hear it.

On clause 2, I should reassure the Committee that the extent to which the police will be able to take fingerprints and samples from people who were arrested in the past is limited. Either the person must still be on bail for the offence or, in relation to cases where the fingerprints or sample were inadequate, the police can require attendance at a police station for the purposes of taking biometric data only for six months after being informed of the inadequacy of the fingerprints or sample. That will, I hope, limit the extent to which the powers are used retrospectively. The provision is included so that the police will use the power only in limited circumstances following the commencement of the Bill, and that will, ultimately, not apply. Clause 3, however, is extremely valuable, and I ask the right hon. and learned Gentleman to withdraw the amendment.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I beg to ask leave to withdraw the amendment.

James Brokenshire (Conservative, Hornchurch)

I beg to move amendment 2, in clause 2, page 2, line 31, at end insert

‘provided that the power under this subsection may not be exercised later than six months from the date of arrest or if earlier the date that it was decided that no further action would be taken in connection with the events or circumstances which led to the arrest.’.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss the following: amendment 4, in clause 2, page 3, line 35, at end insert

‘provided that the power under this subsection may not be exercised later than six months from the date of arrest or if earlier the date that it was decided that no further action would be taken in connection with the events or circumstances which led to the arrest.’.

Amendment 12, in clause 8, page 15, line 37, at end insert

‘provided that the power under this paragraph may not be exercised later than six months from the date of arrest or if earlier the date that it was decided that no further action would be taken in connection with the events or circumstances which led to the arrest.’.

Amendment 14, in clause 8, page 16, line 39, at end insert

‘provided that the power under this paragraph may not be exercised later than six months from the date of arrest or if earlier the date that it was decided that no further action would be taken in connection with the events or circumstances which led to the arrest.’.

James Brokenshire (Conservative, Hornchurch)

I am conscious that we may well not conclude debate on the amendments this morning, and may need to return to them after lunch.

Amendment 2 again deals with powers to take material in relation to offences, and taking fingerprints after arrest. The fingerprinting provisions in clause 2, on page 2 of the Bill, appear to be quite open-ended in their ambit. I heard what the Minister said in his brief overview of the matter in the previous debate, but there are points requiring further examination.

Frank Cook (Labour, Stockton North)

I remind the Committee that with this we are discussing the following: amendment 4, in clause 2, page 3, line 35, at end insert

‘provided that the power under this subsection may not be exercised later than six months from the date of arrest or if earlier the date that it was decided that no further action would be taken in connection with the events or circumstances which led to the arrest.’.

Amendment 12, in clause 8, page 15, line 37, at end insert

‘provided that the power under this paragraph may not be exercised later than six months from the date of arrest or if earlier the date that it was decided that no further action would be taken in connection with the events or circumstances which led to the arrest.’.

Amendment 14, in clause 8, page 16, line 39, at end insert

‘provided that the power under this paragraph may not be exercised later than six months from the date of arrest or if earlier the date that it was decided that no further action would be taken in connection with the events or circumstances which led to the arrest.’.

James Brokenshire (Conservative, Hornchurch)

When we broke for lunch, we had started our debate on amendment 2. In some respects, there is an overlap with the previous debate and the ability to take samples from someone who has been arrested. The amendment seeks to add a new provision, so that the power under section 2(1) in relation to fingerprinting should be exercised no later than

“six months from the date of arrest or if earlier the date that it was decided that no further action would be taken in connection with the events or circumstances which led to the arrest.”

It follows on from the previous debate, in that we need to understand the ability of police officers to take samples from someone who has simply been arrested. The language of clause 2 seems to be open ended. The Minister gave only a brief response on the previous group of amendments, which covered a similar point, so it is important for us to understand how the process works. Similarly, clause 2(4) on non-intimate samples seems to be without time limit.

I alighted on a period of six months in the amendment because I understand that, because of internal requirements, the Crown Prosecution Service normally takes up to six months to decide whether to charge someone who has been arrested in relation to particular facts or circumstances. I question whether that is an appropriate time limit for allowing DNA samples to be taken following arrest. In other words, it should not be some sort of open-ended period. We should alight on something reasonable and appropriate, hence my reason for using the amendment—to probe the Government on some of the detail and to find out whether six months might be an appropriate limit.

It would seem perverse to have an unlimited power to take the fingerprints of those arrested for, but never charged with or convicted of, an offence, beyond any agreed retention period in relation to DNA samples if taken at the outset. In the previous debate, I sought to make the argument that there is a distinction between persons who have been convicted, persons who have been charged and persons who have been arrested.

I appreciate that there was some response, albeit rather swift, prior to lunch. It would help if the Minister said why the Bill seems not to include a specific time limit, similar to that in relation to other provisions, on the specific point of persons who have been arrested and the ability of the police to take samples from them.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

This is only a drafting point. I entirely agree with what my hon. Friend the Member for Hornchurch has said, but there is another category of situation in which time could be relevant, and that is when a trial has not taken place but there has been no decision to discontinue. In other words, the prosecution authorities have made the arrest, but have not taken the matter to trial or, in fact, have decided not to have a trial; they are still pondering whether there should be a trial and/or gathering evidence or whatever. That is an additional category to the one mentioned by my hon. Friend, and perhaps it should be reflected in the approach that he takes to the imposition of time limits.

David Hanson (Labour, Delyn)

Amendments 2, 4, 12 and 14, which have been tabled by the hon. Member for Hornchurch, would place limitations on new and existing powers in the Police and Criminal Evidence Act 1984 to take DNA samples and fingerprints from people who have been arrested or charged with an offence.

As the Committee knows, clause 2 will allow the police to take fingerprints and non-intimate DNA samples from people who have been arrested for a recordable offence and subsequently released—this is the crucial point—either while they are still on bail and their fingerprints or sample have not already been taken, or if the initial fingerprints or samples taken have proved inadequate for analysis. The amendments would prevent the police in England and Wales—there are corresponding amendments to clause 8 for Northern Ireland—from taking fingerprints or samples in such circumstances any later than six months after the date of the arrest or earlier.

I hope that this is a straightforward point. I happen to believe that if there is an ongoing investigation, as is the case if a person is on bail or if the police wish to have a further analysis of the samples, the police should be able to take fingerprints or samples from a person after they have been released from custody, even more than six months after the initial arrest. I am of the view, and it is debatable, that new evidence might come to light and that there might be a need for further investigation. Fingerprints or samples might be required from the person in order to prove or disprove their involvement in a particular offence. Therefore, there are reasonable grounds for the power to be enacted.

Clause 6 already limits the power of the police to require a person to attend a police station for the purpose of having their fingerprints or sample taken. I therefore believe that the changes in the Bill are adequate. I cannot offer any further explanation, so I hope that that is satisfactory for right hon. and hon. Members.

James Brokenshire (Conservative, Hornchurch)

I am grateful to the Minister of State for that clarification. He highlighted the two limbs and said that, obviously, one of the factors was whether the samples taken had been inadequate. This is something that will come up for other provisions in the Bill. I do not know whether he is able to do so immediately, but can he give the Committee any insight on the frequency with which repeat samples are taken—for example, when a sample has been taken but it is not possible to create a profile from it? It would be helpful to understand whether that is a common issue or the exception to the rule, if I may characterise it like that.

David Hanson (Labour, Delyn)

I hope the hon. Gentleman accepts that I cannot give him the figures or the frequency at the moment, but I will certainly look at the issue and write to him, and, if you feel that it is necessary, Mr. Cook, I will copy in other members of the Committee. If the matter is still of concern, it can be returned to in another place or at a different stage of the legislation.

Frank Cook (Labour, Stockton North)

James Brokenshire.

James Brokenshire (Conservative, Hornchurch)

I am sorry, Mr. Cook, I did not want to rise until you called me.

I am grateful to the Minister of State for his clarification of those points. However, it would aid our better understanding of the clause and the amendments if we understood whether samples were required more than once and with what frequency. None the less, in the light of his comments, I beg to ask leave to withdraw the amendment.

Frank Cook (Labour, Stockton North)

Perhaps I can offer some clarification. It is important that all members of the Committee who seek to take the Floor should stand up, so that I know when they want to speak; otherwise, you will fail to catch my eye. You stand first and you are called second. We understand that, don’t we?

James Brokenshire (Conservative, Hornchurch)

We do.

Frank Cook (Labour, Stockton North)

Good.

James Brokenshire (Conservative, Hornchurch)

I beg to move amendment 3, in clause 2, page 2, line 41, at end insert

‘provided that the power under this subsection may not be exercised if the person has been acquitted of the offence or the relevant charges have been withdrawn.’.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss the following: amendment 5, in clause 2, page 4, line 7, at end insert

‘provided that the power under this subsection may not be exercised if the person has been acquitted of the offence or the relevant charges have been withdrawn.’.

Amendment 13, in clause 8, page 16, line 2, at end insert

‘provided that the power under this paragraph may not be exercised if the person has been acquitted of the offence or the relevant charges have been withdrawn.’.

Amendment 15, in clause 8, page 17, line 13, at end insert

‘provided that the power under this paragraph may not be exercised if the person has been acquitted of the offence or the relevant charges have been withdrawn.’.

James Brokenshire (Conservative, Hornchurch)

We come to what could be described as a further, parallel amendment. The amendment provides that

“the power under this subsection may not be exercised if the person has been acquitted of the offence or the relevant charges have been withdrawn.”

We have debated the use of the power in relation to those who have been convicted of an offence and, under the last group of amendments, those who have been arrested. The present amendments deal with the right to go back and take samples when someone has been charged with an offence.

The amendment is intended to test Government thinking about the extent to which there should be the right to go back if someone has been acquitted of an offence or the charges against them have been dropped. At that stage, it would be open to someone to ask why the police should come back when no charges are extant against them. The authorities had a clear opportunity to take DNA examples and fingerprints, so what is the justification, now that the person has been acquitted or had the charges against them dropped, for saying that the police can require them to submit fingerprints or a sample? The purpose of the amendment is to test the thinking and logic behind the belief that it is appropriate to cover such an eventuality.

The amendment is also intended to look at the cumulative impact of the three cases that I mentioned—conviction, arrest and charge—and to make it clear that when one falls away, the others will also fall away; in other words, we should not continually be coming back to a person. That comes back to the point that we made in the previous debate about someone who has been arrested and charged, but who is then acquitted or who has the charges against them dropped. Again, why should a sample be submitted at that point?

It is important to understand why the provisions are necessary in the context of the clause. The relevant supervising officer can require their utilisation when

“taking the fingerprints is necessary to assist in the prevention or detection of crime.”

That is quite wide ranging and open and seems to permit what might be described as simple recall exercise. The police might want to recall someone who was previously charged because they did not take a sample at the time and they want to take one now, even though the person is innocent of any charges at that stage and would, in all other circumstances, be regarded as a free person.

I want to probe the Minister on the safeguards that may be required. Is there any potential to push the envelope? As we debated previously, the case can be made much more clearly and effectively in relation to persons who have been convicted. However, I would appreciate hearing from the Minister why it is felt necessary to cover the eventuality of people who have been acquitted or whose charges have been dropped.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I rise again to support my hon. Friend, but I have two suggestions for drafting amendments, so that if the Bill proceeds to the House or another place and Conservative Members table amendments in such terms, my hon. Friend might reflect on my suggestions.

Amendment 3 would insert

“provided that the power under this subsection may not be exercised if the person has been acquitted of the offence or the relevant charges have been withdrawn.’.”

As far as it goes, that is perfectly clear, but a situation could well arise in which someone has been convicted of a related offence in the same trial. One should contemplate what the drafting impact would be. It is only a drafting point, but my hon. Friend might care to reflect on it. Conversely—if the person has been acquitted of the offence or a related offence—it is quite possible for somebody to be charged with offence A but tried for a slightly different offence and acquitted of it, because alternative verdicts are available. My hon. Friend’s drafting would not take full account of that. It is only a drafting point, but Committee is for drafting.

My other point is also a drafting point. My hon. Friend is, rightly, saying in effect to the Committee that the power to take samples, specimens or fingerprints should expire on two crystallised events: an acquittal or a decision to withdraw. However, there is a third situation, to which I alluded in the previous short debate. There might be no trial and no decision to withdraw; instead, there might be a period of further reflection, examination and inquiry into evidence. In other words, the case might not be left in limbo, but the decision whether to try might be held in suspension while further investigations are made. My hon. Friend should also address that third situation.

What I have in mind—I am drafting on my feet—is that if neither an acquittal nor a decision to withdraw applies, the power to take fingerprints should not be exercised at the expiration of 12 months, or any period we like, from the date of the arrest. In other words, we ought to contemplate the situation of suspension and provide an end date beyond which fingerprints should not be taken. Again, it is a drafting point, but what are we here for if not to try to improve the language of the Bill?

David Hanson (Labour, Delyn)

The answer is simple. As drafted, the amendments would mean that if a decision not to proceed were taken, it would be impossible for us to return for a viable set of DNA samples from an original that proved inadequate for analysis. I accept that there are few circumstances in which that would be the case, but there might be occasions where a sample does not prove adequate. If the amendment were accepted, with some slight on-the-feet drafting tweaks by the right hon. and learned Member for Sleaford and North Hykeham, it might cause difficulties. I will give an example.

Mark Dixie was convicted of the murder of Sally Anne Bowman based on DNA taken after he was arrested in a pub brawl in 2006, following which arrest he was released without charge. Let us say that in that instance, where ultimately he was released without charge, there was a small percentage of an opportunity—I am not even sure of the percentages—that there was poor analysis of his DNA following his release after charge. Let us say that, in that case, for Mr. Mark Dixie, that 1:1,000, 1:2,000 or 1:3,000 chance, or whatever it might be, the DNA was not properly available for analysis. Under the hon. Gentleman’s amendment the DNA database could not subsequently have matched Mr. Mark Dixie, as it did following the murder of Sally Anne Bowman. Mr. Dixie is now serving a 34-year minimum sentence in prison for the murder of that individual.

I accept—the Committee will have to accept—that that might be a small, infinitesimal occurrence. [Interruption.] The hon. Gentleman wants to intervene on me, giving the statistics on that. However, if the provision prevents, potentially, one incident from happening, helps bring somebody to justice, gives justice to the victim and helps bring a murdered to trial or put someone away for 34 years, I think that it is worth the candle. I ask the hon. Gentleman to seek leave to withdraw the amendment.

James Brokenshire (Conservative, Hornchurch)

I hear clearly what the Minister says. There needs to be a focus, when DNA and DNA samples are taken, on the matches being correct. I accept that there should be provisions to deal with the retaking of DNA in circumstances where, for example, there is a dispute about whether the sample matches the profile and to deal with such eventualities. I understand the logic of the Minister’s argument in respect of the need to ensure that adequate records are taken in circumstances where, for example, someone has been arrested in connection with a crime of violence or a sexual offence. However, again, it is a question of whether there should be a long-stop and whether such a matter should be left open for ever and a day. In some ways, my right hon. and learned Friend the Member for Sleaford and North Hykeham was making that point. Even in the example that he gave, that eventuality did not occur: the evidence was there and a conviction was secured. When even the Government are saying that there should be limitations on the period during which DNA records are retained, it therefore follows that there may be an argument for a limit or a long-stop on the period during which further samples can be taken.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I am sympathetic to the point that my hon. Friend makes, but I recognise that the Minister has made a not unworthy point that needs serious consideration. Does my hon. Friend think that one way forward might be to create a statutory presumption, in the terms of his amendment, but give the power in the statute to disapply the presumptive time period on the ruling say of a senior police officer for good and sufficient reason? We would have to find a statutory language that would justify the senior police officer disapplying the presumptive time period. Doing so would thus combine my hon. Friend’s argument with that of the Minister.

James Brokenshire (Conservative, Hornchurch)

I agree with my right hon. and learned Friend and the Minister of State that there are serious issues connected with this matter that should be considered in striking the proportionate, right balance. I am sure that we will discuss that in more detail when we come to the debate on retention and that the Minister will argue for his time period just as we will argue in favour of ours.

There are serious issues to be discussed: I do not demur. I recognise that and appreciate my right hon. and learned Friend’s suggestion, albeit we need to consider what is simple and understandable; I would not wish unnecessarily to make matters less understandable or more complex.

David Hanson (Labour, Delyn)

The hon. Gentleman will know that we are only keeping the samples for six months, which self-evidently indicates, in respect of his concerns, that if we do not know by the end of the six-month period that the sample is adequate, that is a self-defining end period.

James Brokenshire (Conservative, Hornchurch)

I understand the Minister’s point on taking the sample and keeping it for a six months. However, he is making a separate point, which is that even if the sample had been taken and, perhaps, it was discovered after the six-month period that for whatever reason it was inadequate, there should be some residual or reserved power to come back at that point. I may have misunderstood his point, but that is the essence of what he is suggesting in relation to the clause.

The issue is about understanding the circumstances in which a sample may be deemed inadequate to create a profile that is then retained on the DNA database to allow and permit matching. I will certainly reflect upon what he and my right hon. and learned Friend have said about the provisions, because it is important that we get the detail right. The Committee has heard concerns about striking the right balance in relation to proportionality and whether there is a need to put in place some long stops to achieve that balance. At the same time, we need to recognise that there will be limited circumstances in which we need to analyse in detail whether there should be some reserve or residual power to permit the taking of samples or fingerprints. In the light of the comments made by my right hon. and learned Friend and the Minister, I beg to ask leave to withdraw the amendment.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I beg to move amendment 54, in clause 2, page 3, line 6, leave out from beginning to ‘and’ in line 9.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss the following: amendment 55, in clause 2, page 3, line 13, leave out ‘cautioned or warned or reprimanded’.

Amendment 58, in clause 2, page 4, line 13, leave out from beginning to ‘and’ in line 16.

Amendment 59, in clause 2, page 4, line 20, leave out ‘cautioned or warned or reprimanded’.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Amendments 58 and 59 are very similar in terms of their consequences to amendments 54 and 55. Amendments 58 and 59 relate to non-intimate samples and amendments 54 and 55 relate to fingerprints. The proposition is the same in both cases, namely the circumstances in which either fingerprints or non-intimate samples can be taken.

Clause 2(3) states:

“Subject to this section, the fingerprints of a person may be taken without the appropriate consent if (before or after the coming into force of this subsection)—”

I know I would not like that—

“(a) he has been convicted of a recordable offence,

(b) he has been given a caution in respect of a recordable offence which, at the time of the caution, he has admitted, or

(c) he has been warned or reprimanded under section 65 of the Crime and Disorder Act 1998 for a recordable offence”.

In a previous debate, the point was made that where somebody has been arrested and convicted, all the analysis of past evidence suggests that there is a risk of further offences and so on. The Minister would probably say—I know that my hon. Friend the Member for Hornchurch has said this— that when somebody is arrested, that in itself, historically and by looking at the statistics, suggests that they may well go on to commit an offence in the future, which is the justification for taking the fingerprints.

The Bill, however, takes us to a lower level, because it relates to a caution—albeit in respect of a recordable offence—or a warning or a reprimand. I very much doubt whether there is any statistical evidence that somebody who has been given a caution—albeit in respect of a matter that he has admitted—or a warning or a reprimand can be shown as a matter of empirical evidence to be more likely to commit offences in the future. It may be true of people who have been arrested and it is true of people who have been convicted, but this is a situation of a less grave kind. As I am very cautious about extending the circumstances in which people can have their fingerprints and non-intimate samples taken, I ask myself: is it right to create a trigger point that is less than a conviction? That is the issue for the Committee and it applies to both non-intimate samples and fingerprints. That is the only point that I want to make at this stage.

James Brokenshire (Conservative, Hornchurch)

I understand the concerns of my right hon. and learned Friend about this provision, whereby the right to seek samples and fingerprints can be used not simply on the basis of conviction but also on a caution being issued. While he has characterised the situation at a lesser level, an issue will arise relating to the broad way in which cautions are now being used. Some very serious offences, such as rape, are simply being disposed of by way of a caution.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Perhaps my hon. Friend should stand the argument on its head. If one struck out the ability to take fingerprints on the basis of a caution, some of the incentives for the police to proceed by caution would fall away.

James Brokenshire (Conservative, Hornchurch)

I understand the sentiment behind what my right hon. and learned Friend says, and I agree that cautions have been overused in the rush to summary justice. The pressures of sanctioned detections to bring of crimes to justice under previous regimes, has led to a situation in which quite serious offending has been dealt with by a legal slap on the wrist.

We argued earlier about using conviction information as a means of identifying what further offending might take place, and we looked at the need to go back and take fingerprints or samples. If someone has received a caution for a recordable offence—that may be a very serious offence—I would be concerned if we could not go back and deal with that category of offender. If one accepts a caution, one accepts liability. There is criminal liability denoted by the acceptance of a caution. That might not be fully understood by everyone who receives a caution; nor might the implications of accepting a caution, and the fact that it may show up on Criminal Records Bureau records in future. Some people have applied for jobs, without appreciating the fact a caution is regarded in the same way as a conviction, only to find that it is very much on the record.

My right hon. and learned Friend makes a fair point about whether cautions have been used too frequently. I get the sense that the Government are beginning to accept that that is the case, and there are reviews into the way that summary justice is being used at the moment. Cautions have been given for quite serious offending, and while I am sympathetic to my right hon. and learned Friend’s point, because of the way in which this measure has been applied over a number of years, it will be very difficult to exclude this category. His proposal underlines the over-use of cautions, and I appreciate his nudge technique in saying that if this power were withdrawn it would have an impact on future behaviour and the use of cautions by the CPS and the police. We need to be careful because of the way in which this approach has been used previously.

I would appreciate assistance from the Minister on a technical drafting issue. New subsection (6)(b) talks about someone being

“given a caution in respect of a recordable offence which, at the time of the caution, he has admitted”.

A caution normally denotes admission of liability or guilt, so I am slightly unsure as to whether a separate category is created by adding the words, “he has admitted”. Would the provision apply only if there was a formal admission at the time of the caution? Are we saying, therefore, that if a caution has been issued—with an element of admission attached—there is also the requirement that the person has admitted the offence? I would like to understand whether I am reading into the provision an element that should not be there. Perhaps the Minister of State and his officials might reflect on that.

David Hanson (Labour, Delyn)

I shall look into that point with colleagues, perhaps after today’s Committee sitting.

I want to make two speedy points on the amendments. Essentially, as the right hon. and learned Member for Sleaford and North Hykeham has said, the amendments would remove “caution” from the Bill. This is not universal but, sadly, if somebody commits an initial offence, there is statistically more chance of their committing a further offence than if they do not commit an offence at all. Whether we like it or not, individuals facing a caution or a conviction in whatever circumstances, are statistically likely to, at some point downstream, have committed another crime. That does not mean that everyone who commits a first offence goes on to commit several more, but it is statistically more likely. Effectively, by removing that wording from the Bill we are removing the opportunity to include on the database individuals who may show up for further crimes that are not linked in seriousness to the initial crime.

I shall give as an example the case of Wayne Bowe, who in February 2009 got into a fight with 25-year-old Michael Hewitt. Mr. Hewitt was kicked, stamped and, as he lay unconscious, further attacked by Mr. Bowe. The victim remains wheelchair-bound in rehabilitation. He is unable to walk and barely able to speak, and the prognosis is extremely bad. We have his permission to raise the case because he and his family know that Mr. Bowe was caught as a result of DNA from the scene of the crime being matched to the DNA database. Mr. Bowe had some years earlier been arrested and issued with a fixed penalty notice, which is one of the lowest levels of criminal justice disposals. As a result, not only has Mr. Hewitt now got justice, but Mr. Bowe, rather like the killer of Sally Anne Bowman, is not with us today, because since 8 October he has been in prison, where he will be for the next five years and four months, subject to any further legal proceedings. That makes the case for the provision.

I could be universal about the matter; I can listen to the debates. However, if one person is brought to justice as a result of the provision, it is worth retaining it in the Bill. I have heard what both the right hon. and learned Gentleman and the hon. Gentleman have said, but if possible, we should retain the provision for such individuals. We have been able to look at the drafting point regarding new subsection (6)(b) rather more quickly than I had anticipated. The wording on cautions just mirrors the existing wording on samples, and I hope that the hon. Gentleman will be satisfied with our speedy and judicious explanation.

Frank Cook (Labour, Stockton North)

Impressive.

David Hanson (Labour, Delyn)

It came to me in a flash.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I understand the Minister of State’s argument in respect of the caution, because in the context of the proposed new subsection it points to an admitted offence.

Although my hon. Friend the Member for Hornchurch is right that the number of people who agree to a caution, notwithstanding the reality that they are not admitting the offence, do so for the pragmatic reason of not wishing to appear in a court, there is some inherent intellectual logic in what the Minister of State said. I am not sure that his logic is as powerful when it comes to new paragraph (c), which is the subject of one of my amendments. There we are dealing with a warning or reprimand. I do not think that a warning or a reprimand carries within it an admission by the person being warned or reprimanded that he or she is guilty of the offence. To that extent, the logic that applies to new paragraph (b) is not running in new paragraph (c), because there is no admission.

At the end of the day, I am not going to put this to the vote, as I do not have the troops. In any case, why waste time, because the Government do have the troops? However, I must tell the Minister of State that it is worth reflecting on whether a warning or reprimand, of itself, should trigger the power to take fingerprints and/or samples because it is not of itself an admission. That being so, the argument that a person has been guilty of an offence, so is more likely to do it in future does not run. Subject to those observations, I beg to ask leave to withdraw the amendment.

David Hanson (Labour, Delyn)

I beg to move amendment 34, in clause 2, page 3, line 20, at end insert—

‘( ) In that section, for subsection (8B) there is substituted—

“(8B) Any power under this section to take the fingerprints of a person without the appropriate consent, if not otherwise specified to be exercisable by a constable, shall be exercisable by a constable.”’

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss Government amendment 35.

David Hanson (Labour, Delyn)

These are minor technical amendments to ensure that any power to take fingerprints without consent under section 61 of PACE and the Northern Ireland equivalent order can be exercised by a constable whether or not the person concerned is detained in a police station. At present, PACE states that fingerprint-taking powers can be exercised by any constable if someone is detained at a police station. As the new clauses proposed in the Bill will give the police powers to take fingerprints from people who are no longer in police detention, it is important that we make it clear that these powers can also be exercised by any constable. I therefore consider the changes in these amendments necessary and I urge the Committee to support them.

James Brokenshire (Conservative, Hornchurch)

As the Minister of State says, this is a narrow and technical amendment. It seeks to ensure that a constable is covered by the provisions in the Bill and, in essence, it makes that exclusive. In other words, by stating that a constable is the specified person to take a sample or fingerprints, no other authorised categories of person could undertake those duties. The explanatory notes state that the power to take fingerprints under PACE may be exercised by a constable whenever the power is exercised. Is it intended to allow anyone else to do so? Is that implied by specifying that it is a constable? Could persons other than a constable be able to exercise these powers? As we know there are other circumstances in other pieces of legislation such as measures on asset seizures where powers that had previously been vested in the police can now be undertaken by accredited financial investigators. Are the Government considering that in relation to this provision, and what case are they making? I am sure that the Minister will be able to respond and say that only constables can use this power, which is why it is being made explicit in the Bill, but I would appreciate that confirmation.

David Hanson (Labour, Delyn)

Again, the purpose of the amendments is to amend PACE. Currently, these powers can be exercised by any constable when someone is detained in a police station, but the amendments will allow any constable to exercise these powers when someone is no longer in police detention. That is the purpose of the amendments, to ensure that a constable can do that when someone is not in detention for the reasons that we have mentioned.

If a constable has these powers, they are also available to civilian detention officers appointed under the Police Reform Act 2002. Again, I hope that is helpful to the hon. Gentleman. Essentially, the powers are for a constable to use, along with civilian detention officers as specified.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I am not familiar with this aspect of police work, but does a civilian forensic officer who is working in concert with a constable have the power in those circumstances to take fingerprints and/or non-intimate samples? If the Minister does not know, he can tell us later; I am not demanding an immediate reply. However, he will know that very often forensic officers and scenes of crime officers are not policemen.

David Hanson (Labour, Delyn)

I am advised that civilian forensic officers do not have that power and that effectively the power is available to the constable and, as I mentioned earlier, to a civilian detention officer.

Frank Cook (Labour, Stockton North)

With this, it will be convenient to discuss the following: clause 8 stand part.

New clause 9—Repeal of sections 9 and 10 of the Criminal Justice Act 2003—

‘Sections 9 and 10 of the Criminal Justice Act 2003 are repealed.’.

We got it in the right sequence there.

James Brokenshire (Conservative, Hornchurch)

We will get there, Mr. Cook.

Frank Cook (Labour, Stockton North)

We had better. [Laughter.]

James Brokenshire (Conservative, Hornchurch)

I have little doubt that you will ensure that we get there, Mr. Cook.

We now move on to the clause stand part debate. As I have already indicated, there are aspects of the clause that we welcome, including the fact that the Government are showing a shift from their previous approach of simply expanding the DNA database for the sake of it, without consideration of how they were going about that. There is a desire to focus on those convicted offenders, to ensure that the DNA profiles of those convicted of an offence are protected and put on the database.

We had argued for that to happen for quite some time, so we welcome the Government’s acknowledgement and acceptance of the need to take this more focused approach, because of the likelihood that it will result in further convictions, more crimes being solved and more people being brought to justice.

We have highlighted some concerns about what might be the wide-ranging and subjective test applied by an inspector in relation to those who have been acquitted, those who have been charged and those who have simply been arrested. However, there is a need to ensure that there are rights to go back to people who have been convicted of offences; in that sense, I hope that this power, by bringing more criminals to book, is an important step forward.

My questions are practical. How do the Government now envisage these powers being used? For example, is there a sense of wanting to prioritise those convicted of the most serious offences? Is it intended that an approach should be taken to work through and identify, for example, people who have been convicted of offences but do not currently have their DNA records on the DNA database? Is the intention to take a more systematic approach? Will there be a focus on people who may already be in custody, as that would seem to be the most effective group to deal with in the first instance?

Does the Minister anticipate that, as a consequence of the provisions and the ability to look back, significantly more DNA profiles will be added to the DNA database in that way? How many would there be and over what time period would that increase apply? Is it the intention that guidance on the use of the power, the exercise of discretion, and how the new provision can be harnessed as effectively as possible, will be issued to police forces? Is there an estimate of additional cost or resource that would be applied to any such guidance?

Obviously, if the intention is for police officers to go back to check records to assess whether they should approach certain individuals to ensure that their DNA data are captured, that will have some resourcing and manpower implications. In respect of what I have mentioned about seeking to bring more criminals to justice, it would be helpful to know whether a more systematic approach is anticipated, to try to bring people to book by means of focusing on the most serious criminals, then perhaps moving forward to other criminals and then working through in an almost programme-type way.

Alternatively, are the Government simply saying that they will look at the issue on a more piecemeal basis—if there was some intelligence indication that such action would be appropriate, or if we had not got the DNA of a certain individual and we had to go back? There are two markedly distinct approaches—the provision could be used in an intelligence-led way, or in a more programmed, more systematic way. What is the intention?

The Liberal Democrats have tabled new clause 9, which seeks to delete sections 9 and 10 of the Criminal Justice Act 2003, which itself was an amending provision relating to sections 61 and 63 of PACE. I assume that that is on the basis of overlap and potential conflict, to achieve clarity on the various changes and amendments that may have been made to PACE.

As I am sure the Minister appreciates, when we have lots of amending statutes it is sometimes quite hard to reconcile precisely where we have got to in terms of not having a consolidating statute. I assume that this is an issue of clarity, so that the accumulative amendments can be restated in one place. However, I will listen to the points that are made on new clause 9 to find out whether there are other aspects that were not apparent to me on Second Reading.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

If I may, Mr. Cook, I shall dilate a little on an anxiety that I have long had about DNA. I think that it arises properly in this debate, but if you tell me that I am wrong I will sit down, and perhaps we can have the debate later.

I have dealt with DNA quite often in my criminal practice. Perhaps I might tell the Committee about one case and then say what worries me about it. I did a case three or four years ago, and I will call the defendant Mr. X. He was a client of mine who had committed no offences at all before the index offence, 10 years or so prior to his trial. In the event, I think, he committed a very bad rape. In fact, he entered a private house wearing a pillow case over his head and raped a woman in very disagreeable circumstances.

Nine years later, Mr. X was involved in a fracas with a taxi driver and a DNA sample was taken. The original DNA was not really capable of proper profiling, but 10 years later, three or four years ago, the low-copy number technique was better perfected. It was possible to match the DNA, which Mr. X provided after his assault on a taxi driver, with the rape. As it happens, although it was not the only evidence against him, he certainly would not have been convicted without the DNA. The DNA was absolutely decisive. We tried to prove that the low-copy analysis was unsound, but that did not run. He was convicted.

What does that tell me? It tells me, and the Committee, that DNA is a very important detection tool. This chap would not have been convicted without it. It was in many ways a tragic case, both for the victim and, curiously, for him, too. He had not committed an offence before or since, other than the assault on the taxi driver. That is very unusual, as a matter of fact.

The case also tells us that maintenance of the DNA database is a huge deterrent. We all accept that DNA is a huge detection tool and it is also a deterrent, because there are virtually no offences involving individuals—rape is an obvious example, but so is common assault, grievous bodily harm, actual bodily harm and so on—that do not involve DNA passing to the victim, or being left on the site. The same applies to almost any offence that is committed by a person who has to enter a premises—one can go on making these points. In other words, DNA is a huge deterrent as well as a detection tool. If that is true, which it is, one asks a difficult question: to what extent should we extend the DNA database rather than confine it? I find myself always oscillating between those two positions.

The police in the evidence-taking session are in the same position as I am: they are subject to public confidence. If I asked myself whether I would mind if the police had my DNA, I think that the answer would be no. I would want provisos in the criminal law that there should not be a conviction on the basis of DNA alone and that there should always be corroboration, but the risk of a mismatch is tiny, although I believe that there was a mismatch in the Enniskillen case. [Interruption.] I see that the Minister is making a face. I think the truth was that the profile was so damaged that although it appeared that there was a mismatch, it was not possible to say positively that there was. It was a chap in Birmingham or somewhere, a young man, who clearly could not have been the person who did the bombing in Enniskillen. It was something like that.

I ask whether the country is right to try to restrict the database as narrowly as we are, or whether we should try to extend it. Left entirely to myself, and subject to the costs and practicalities, which are huge considerations—I do not for one moment suggest otherwise—and if the public were to accept it, I would extend the database for the reasons that I have given. However, I do not think that the public would accept it, and, because we are in the business of reassuring the public, my hon. Friend the Member for Hornchurch, myself and Front-Bench spokesmen are right to confine the circumstances in which samples can be taken and retained.

Let us be clear about this: we are depriving ourselves of a resource that is not just a detection resource but a deterrent, and that is bad news for the criminal law. However, one can move only as fast as the country will accept at any one time, although times may change. That is the one dilemma that I have always had about DNA.

In 1988, I was Under-Secretary of State at the Home Office, at just about the time when DNA was coming forward. It was an interesting time. Things have moved on enormously in the past 22 years and will continue to move on. I hope that we will not wholly shut our eyes to the possibility, in time, of developing a much more extensive DNA database.

Mark Oaten (Liberal Democrat, Winchester)

I do not intend to hold the Committee up. The hon. Member for Hornchurch neatly summed up the reasons why my colleagues and I tabled the new clause.

Clause 3

James Brokenshire (Conservative, Hornchurch)

I beg to move amendment 6, in clause 3, page 5, line 5, leave out from ‘person’ to ‘may’ in line 6.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss the following:

Amendment 8, in clause 3, page 6, line 3, leave out from ‘person’ to ‘if’ in line 4.

Amendment 22, in clause 3, page 6, line 36, leave out paragraph (b).

Amendment 16, in clause 9, page 18, line 5, leave out from ‘person’ to ‘may’ in line 6.

Amendment 18, in clause 9, page 19, line 3, leave out from ‘person’ to ‘if’ in line 4.

Amendment 23, in clause 9, page 19, line 34, leave out paragraph (b).

James Brokenshire (Conservative, Hornchurch)

Obviously, we have moved on from the previous clause. I hope that the Minister will have an opportunity to write to the Committee with his response to the preceding debate. It was an interesting debate, and I look forward to hearing from him in due course.

David Hanson (Labour, Delyn)

Instead of writing to the hon. Gentleman, may I say with regard to the previous clause—I know that we are not debating it now, Mr. Cook—that the Association of Chief Police Officers is considering how the powers will be used. Operation Sheen is examining the extent of previous convictions and bringing the people involved on to the database. I am sure that we can save a letter by referring to those matters in due course.

Frank Cook (Labour, Stockton North)

Perhaps I ought to explain to the Committee that I was operating on the old adage that silence gives consent.

James Brokenshire (Conservative, Hornchurch)

I am grateful to the Minister for providing that information. As they say in many circumstances, silence is golden.

Amendment 6 deals with powers to take material in relation to offences outside England and Wales. My right hon. and learned Friend the Member for Sleaford and North Hykeham has spoken about the interrelationship between offences in other jurisdictions and whether they exist as offences in the UK. Amendment 6 and the associated amendments seek to probe a little further into the rationale for limiting the application of the power to United Kingdom nationals or residents. The provisions for taking relevant samples are clearly limited to those two categories of person, which raises a question about the scope of the clause.

Clause 3 amends section 61 of PACE to give rights to take fingerprints and samples from UK nationals or residents who have been convicted of an offence overseas. What rights exist or are contemplated for the police to take samples from persons in this country who are neither UK nationals nor UK citizens? It might be important and relevant to solving crimes and bringing criminals to justice if foreign nationals in the UK who are not deemed to be resident are suspected of committing an offence. Obviously, suspicion would trigger provisions such as those in section 1 of PACE, but the person might have been convicted overseas. If the Government now seek to use the strategy to which the Minister alluded to receive information from other Governments in connection with overseas offenders in the United Kingdom, what rights exist?

My question about the clause is highlighted in the amendments. Why is the power limited as it is? Should a person who has been convicted of an offence overseas, whether or not they are a UK national or a UK citizen, be subject to the power? The Committee would benefit from the Minister’s response on that. If a serious offender comes to the UK regularly but is neither a UK national or a UK resident, they would seem to fall outside the wording of the Bill, even though they might have committed a serious crime in the UK that would be solved if their DNA had been taken, based on the information that an offence had occurred overseas. That is what would happen to a UK national or resident if it were known and the Government and police sought to use the power.

There may be some legal impediment, or some other legal right. There are certainly rights to take DNA and samples from persons entering the UK at the border, but the question is what happens once they are here. I therefore see merit in considering whether the clause should be extended in the way that I have outlined. It would be helpful to hear whether the Government contemplate doing so, or whether they believe that the matter is adequately addressed by other means. As it is now, I am left with that question in my mind, and I am sure that others will feel the same way.

David Hanson (Labour, Delyn)

The Committee will be aware that clause 3 applies to a relatively short list of serious offences that are likely to attract long sentences. I understand where the hon. Member for Hornchurch is coming from and hope that I can give him the reassurance that he seeks, as these matters are obviously dear to our hearts, too.

Under current immigration laws, a person who has been convicted of an offence that, if committed in the UK, would be punishable with imprisonment for a term of 12 months or more would normally be refused entry clearance or leave to enter, except in extremely rare circumstances when there might be compassionate grounds for allowing visa entry. The UK Border Agency has advised us that if it is aware that a short-term visitor to the UK from a visa-national country has been convicted of an offence, it would normally refuse the entry requirement. It is certainly aware of the situation and ensures that individuals known to the UK Border Agency do not enter the country. Self-evidently, a range of other issues could arise, but the provisions of the amendment are effectively covered through the work of the agency.

James Brokenshire (Conservative, Hornchurch)

I hear what the Minister of State says about UKBA. For example, a visa might not be granted, or there might be checks and the person could be stopped on entry into the UK; other rights, too, could be used in that way. However, if there were an error and it was discovered after the event that the person had not been stopped, there could be someone who was of interest—perhaps information had been provided about serious offending overseas—in the UK and it would therefore be considered desirable to take a DNA profile.

Is the Minister saying that that is why we need some sort of visa requirement? Perhaps he will expand on the situation for people coming to this country from other EU countries. Of itself, that would not seem to raise the same visa requirements, given the free movement requirements and the other obligations that we are under as an EU member state. What would the situation be in such circumstances? How would that be captured?

Douglas Hogg (Conservative, Sleaford and North Hykeham)

This is a rather interesting debate. I am bound to say that I am grateful to my hon. Friend the Member for Hornchurch for focusing on the subject, because I have not addressed the point as carefully as one should. What the Minister of State and my hon. Friend have been talking about is more or less what happens at the border—whether someone can be picked up on entering the United Kingdom. I can conceive of another set of circumstances.

A foreign Government could hear that someone is a short-term visitor to the UK and say that they would be quite interested to know whether that person is who they think he may be. That could happen for any number of purposes, including extradition and intelligence. I am rather doubtful whether clause 3(1) could be used. Before the fingerprints can be taken, one presumably has to know that the person has been convicted of an offence committed abroad—that appears to be the language of the clause. However, one might be trying to find out whether the person in question is or is not Mr. X. Mr. X may have been convicted, but it might not be known whether the chap staying at the Dorchester is Mr. X. I believe that, in those circumstances, one cannot use proposed new section 61(6D)(a) of PACE, because one does not know whether he is the same person. The question is whether one should be able to.

Should the Bill be redrafted so that we can use the fingerprinting power at the request of a foreign Government to ascertain whether the chap at the Dorchester is the person who has been convicted in the United States of a relevant offence? I do not know, but I think that we should be addressing that question.

David Hanson (Labour, Delyn)

I have tried to explain that visitors from countries that require a visa for the UK will already have had a criminal records check as part of the application process. Nationals from countries that do not require a visa may be refused entry on arrival if the UKBA is aware of convictions.

It is self-evident that if convictions come to light post-entry, there is scope to deport. However, if the hon. Member for Hornchurch will withdraw the amendment, I will reflect on his questions, because I am concerned. He has brought to the Committee’s attention valuable points about those unlikely circumstances in which a foreign national is in the country and the conviction has come to light after entry. As that person could have been here for some time, the retention of DNA may be of assistance generally.

I am not saying to the hon. Gentleman that I will accept the amendment or table one on the subject, but his point is worthy of wider exploration to ensure that we do not do what I know we do not want to do, which is to allow individuals to commit crimes. We want to use the DNA base to ensure that we bring people to justice for future crimes.

James Brokenshire (Conservative, Hornchurch)

In the spirit of the right hon. Gentleman’s response, and because the matter needs careful review, I accept what he says about wishing to give it further consideration. I alighted upon the problem in my examination of the Bill and there may be other provisions of which I am unaware that provide some other powers to the police in the circumstances we have discussed. I am grateful to him for his assurances. In the light of his comments, I beg to ask leave to withdraw the amendment.

James Brokenshire (Conservative, Hornchurch)

I beg to move amendment 7, in clause 3, page 5, line 29, leave out subsections (2) and (3).

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss the following: amendment 9, in clause 4, page 8, line 1, leave out from ‘include’ to ‘a’ in line 2.

Amendment 17, in clause 9, page 18, line 28, leave out subsections (2) and (3).

Amendment 19, in clause 10, page 21, line 1, leave out from ‘include’ to ‘a’ in line 2.

James Brokenshire (Conservative, Hornchurch)

The amendment would delete the references to intimate samples and the proposed changes to section 62 of PACE through the insertion the two proposed new subsections. These are testing amendments; I do not intend to press them. They are designed to enable us to understand better the purpose of the provisions.

Given the nature of the searches undertaken, it is difficult to fathom why two or more non-intimate samples would “have proved insufficient”. How has that approach been alighted upon? We discussed earlier the situation that may arise in relation to insufficient samples being taken. Careful thought has clearly gone into subsection (2). It may have been particularly careful due to the nature of the searches that may be undertaken. It will be helpful to understand what is meant by “have proved insufficient” and by

“non-intimate samples suitable for the same means of analysis”

What is intended by that terminology? The other amendments in the group are consequential or mirroring provisions that match changes in clause 9. It will be helpful to know what is meant by the language used.

David Hanson (Labour, Delyn)

The amendments would, as the hon. Gentleman described, prevent the police from taking an intimate sample from a person convicted of a qualifying offence outside England and Wales. The powers contain what I hope are significant safeguards on their use.

First, as with all the powers in clause 3, they can be used only following a conviction for a serious offence outside England and Wales. Secondly, as we have said, the police must have taken two or more non-intimate samples and both must have proved to be insufficient for analysis before an intimate sample can be taken. Thirdly, the taking of the sample must be authorised by an officer of at least the rank of inspector. That is an important safeguard.

Finally, as with existing provisions of PACE on intimate samples, the powers in the Bill can be used only with the consent of the person to be sampled. Under section 62 of PACE, it is already possible to take intimate samples where a person is no longer in police detention if two or more non-intimate samples prove to be inadequate for analysis. Clause 3 aims to replicate, with some necessary modifications, the current provisions to allow the taking of intimate samples. If the option for an intimate sample is not available, that could result in a further series of non-intimate samples being taken until a satisfactory profile is derived.

As I said, I consider that the provisions include a number of important safeguards for the individual being sampled. A range of issues relating to inadequacy or unsuitability for analysis could be considered. I am not a scientist and cannot go through the details, but essentially if there is not a sufficient sample to create a profile, that means that it is inadequate or unsuitable for analysis and the matter would need to be re-examined. I think that that is fair. Some means of analysis could be undertaken in relation to a range of points around the DNA. I simply say to the hon. Member for Hornchurch that inadequate or unsuitable samples would not be able to create a profile. There could be problems to do with drugs or alcohol—there are all sorts of reasons. The bottom line is that a judgment is made: have we a sufficient, adequate sample for analysis? If we do, that is fine. If we do not, we need to revisit that. The safeguards in the clause are, I believe, sufficient to deal with the concerns that have been raised.

James Brokenshire (Conservative, Hornchurch)

I am grateful to the Minister for his clarification and explanation in relation to the clause. In the light of his comments, I beg to ask leave to withdraw the amendment.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss clause 9 stand part.

James Brokenshire (Conservative, Hornchurch)

I rise briefly to test the Minister’s comments on the previous utilisation of the powers and the fact that ACPO is developing a protocol and procedures for utilising the powers in clause 2. Can the Minister confirm what the intention is on clause 3? Will the programme that ACPO is developing equally apply to the provisions in clause 3? Also, what discussions has he had with colleagues in Europe about the utilisation of the PrĂ1/4m treaty in relation to obtaining information or data from other European authorities?

David Hanson (Labour, Delyn)

As I have said, ACPO, under Operation Sheen, is considering a range of issues under clauses 2 and 3. I have not had any discussions with European counterparts in relation to the operation of the provision the hon. Gentleman mentioned. I will check whether any officials have had contact, because I would not wish to mislead the Committee on the actions of the Government as a whole. I certainly have had no discussions with colleagues, although we have discussed with ACPO the legislation’s implementation and use. I hope that that is sufficient explanation for the hon. Gentleman.

Clause 4

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss clause 10 stand part.

James Brokenshire (Conservative, Hornchurch)

The clause appears to provide for different information to be incorporated on custody records, notably the power under which fingerprints are taken and whether authorisation of the court has been required. The explanatory notes say that the clause re-enacts provisions of PACE, although I should be grateful if the Minister of State clarified why it is felt that there is a need for a change, given that that power exists under section 61(7) of that Act, which incorporates a requirement to explain the reasons for the search. That requirement has been maintained and two specific issues are being added in relation to the power under which the fingerprints are taken and the authorisation is made.

Will the right hon. Gentleman explain why it was felt necessary to add those additional points? Was that information already being recorded in some other way and is this simply a form of codification or clarification to put that on a statutory footing? I want to understand the significance and importance of the provision, what data sets are likely to be captured, and the implications for bureaucracy and so on of the collection and utilisation of the new information fields.

David Hanson (Labour, Delyn)

I try to help not just the Committee but the general public, as do my officials. The changes have been made to re-enact the provisions on information because of changes that we are making to the 1984 Act in other parts of the Bill, and to consolidate the existing information requirements so that they are easier for everybody to understand, in the event that both Houses of Parliament support it. There are no particular changes. The clause consolidates the information, so that those who have to implement the provision understand our intentions fully. I hope that that helps.

Clause 5

Mark Oaten (Liberal Democrat, Winchester)

I beg to move amendment 102, in clause 5, page 9, line 3, at end insert—

‘(1A) In section 24 of the Police and Criminal Evidence Act 1984 (arrest) after subsection (6) there is inserted—

“(7) For the avoidance of doubt, the taking of fingerprints, impressions of footwear and intimate and non-intimate samples is not, on its own, a reasonable ground for believing that it is necessary to arrest a person.”’.

Again, I do not intend greatly to delay the Committee, because the amendment is pretty self-explanatory. We are concerned that arrests may be taking place with the simple purpose of trying to obtain DNA, fingerprints and other forms of identity. We want the wording to be extremely tight, which is why the amendment suggests using the words,

“For the avoidance of doubt”.

It will help us if the Minister gives some reassurances that any practice of arresting an individual for that purpose alone is not the Government’s intention.

James Brokenshire (Conservative, Hornchurch)

It would be helpful if the Minister responded to concerns that have been highlighted publicly about whether arrests are being made simply to obtain DNA records, and explained what guidance is given to police. It would seem odd and perverse if the power was being used in that way, so I have some sympathy with the amendment tabled by the hon. Member for Winchester. We need to set out clearly that if there is suspicion for an arrest, it enables DNA to be taken. There are other provisions that allow for DNA to be taken in other circumstances following arrest, charge or conviction. It should not be the other way around. In other words, if one arrests someone and obtains their DNA, there has to be suspicion to facilitate the arrest in the first place. I think that is clearly stated in law, but the suggestions of certain organisations that it is not the case are of concern. I understand why the hon. Gentleman has tabled the amendment and would welcome a response from the Minister.

David Hanson (Labour, Delyn)

I am grateful to the hon. Member for Winchester for allowing me to say that in no circumstances is anyone arrested simply to put their name on the DNA database. That is not the purpose of this or any previous legislation. The amendment is not necessary, because under PACE there are already clear criteria for the grounds on which an individual can be arrested; section 24(4) notes that an arrest by a constable has to be on reasonable grounds. I understand that assertions have been made—an ex-officer, for instance, has made comments to that effect—but I assure the Committee that there have to be strict grounds for arrest, and the simple collection of DNA is not, never has been and never will be one of them.

Mark Oaten (Liberal Democrat, Winchester)

I am grateful to the Minister for clarifying the issue in such clear language. On that basis, I beg to ask leave to withdraw the amendment.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss clause 11 stand part.

James Brokenshire (Conservative, Hornchurch)

Clause 5 makes amendments to section 63A of PACE to allow speculative checking against other information held by the relevant organisation. The changes will be inserted after section 63A(1D) of PACE, which indicates that subsection (1D), which centres on provisions relating to samples that have been volunteered by an individual, will remain in the Act. Subsection (1C) states that where

“fingerprints, impressions of footwear or samples have been taken from any person in connection with the investigation of an offence but otherwise than in circumstances to which subsection (1) above applies”—

which is the situation relating to arrest—and

“that person has given his consent in writing to the use in a speculative search of the fingerprints...or of the samples and of information derived from them, the fingerprints...or, as the case may be, those samples and that information may be checked against any of the fingerprints...samples or information mentioned”

in the preceding paragraph.

The significance of that is that subsection (1D) states:

“A consent given for the purposes of subsection (1C) above shall not be capable of being withdrawn.”

We have had a debate on information and on samples that have been volunteered. The substantive provision as outlined in section 63A of PACE seems to suggest that if one has volunteered a sample, one’s consent cannot be withdrawn. Even so, the Government have said that is not the case in respect of provisions dealt with elsewhere. There may be some conflation with other provisions that deal with volunteered samples, but I am worried that under subsection (1D), which is flagged up by clause 5, consent could not be withdrawn if, when an offence has been committed, someone who has not been arrested provides a sample to assist with inquiries because they are willing to allow it to be run against a speculative search against other databases. How limited is that? Should they be able to withdraw their consent? It is suggested in other circumstances that consent should be capable of being taken away, so it should be able to be withdrawn.

The references in clause 5 flag that up, so it would be helpful if the Minister would clarify the Government’s intentions regarding samples that may have been volunteered or provided when consent was given by someone who had not been arrested. What would be the approach if that person subsequently decided that they wanted to withdraw their consent? My understanding is that the Government accepted that consent could be withdrawn, but I may be misreading part of the Bill, so I would welcome the Minister’s response.

David Hanson (Labour, Delyn)

I hope that I can help the hon. Gentleman. On page 47 of the Bill, new section 64ZL (3) states:

“Consent under this Article can be withdrawn at any time.”

If that provision is accepted, it will apply to clause 5.

James Brokenshire (Conservative, Hornchurch)

I am grateful to the Minister for highlighting new section 64ZL. It refers to article 64, and I presume that is a reference to the Northern Ireland legislation rather than to the Police and Criminal Act 1984, but it does not seem to refer to section 63A. It refers to articles 64 and 61(6) (a), but not to section 63A. It may deal with other provisions, but I question whether that is sufficiently wide to capture section 63A. It may do so, and I am grateful for the Minister’s clarification, but I am not clear about the numbers and numerics.

David Hanson (Labour, Delyn)

I am advised that the new section does capture that provision, and I hope that reassures the hon. Gentleman.

James Brokenshire (Conservative, Hornchurch)

I am grateful to the Minister, and if that is the case, it is on the record. The numbers were somewhat confusing because they did not seem to tally. I am grateful for the Minister’s response.

Clause 6

James Brokenshire (Conservative, Hornchurch)

I beg to move amendment 10, in clause 6, page 10, leave out lines 26 to 28.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss the following:

Amendment 11, in clause 6, page 12, leave out lines 31 to 34.

Amendment 20, in clause 12, page 23, leave out lines 25 to 27.

Amendment 24, in clause 12, page 25, leave out lines 25 to 28.

James Brokenshire (Conservative, Hornchurch)

The clause relates to a power to require attendance at a police station. The amendment would delete the provision relating to a person subject to a control order. In many respects, its purpose is to test and clarify the Government’s thinking on control orders and alternatives that may be available to deal with the serious issue of information suggesting that someone is suspected of a potential terrorist act.

The Minister will be aware that this has been a fairly live issue in the courts and has been debated generally. He is seeking powers to compel a person subject to a control order to attend at a police station pursuant to the provisions of the Bill. We have warned the Government many times that control orders are not working, and that we would launch a full review of the control order system with a view to reducing reliance on it. The Government have maintained the position that they see no need to do that. They see the effectiveness of control orders, notwithstanding a number of recent cases. We had one only a few weeks ago, when two control orders were raised in the High Court and their effectiveness questioned.

The Home Affairs Committee this morning published a report questioning the use of control orders. On page 20, the report states:

“Control orders no longer provide an effective response to the continuing threat and it appears from recent legal cases that the legality of the control order regime is in serious doubt. It is our considered view that it is fundamentally wrong to deprive individuals of their liberty without revealing why. The security services should take recent court rulings as an opportunity to rely on other forms of monitoring and surveillance.”

There is a need to review the current use of control orders; there are other mechanisms that may be addressed. The Home Affairs Committee focused, for example, on the admission of intercept evidence—something the Conservatives have highlighted. It is interesting to note the powers in the Bill for maintaining the control order regime, seemingly without any reflection or consideration of their utility. In considering whether it is appropriate to retain those provisions in the Bill, I would like to hear the Government’s latest position and in particular their response to the criticisms raised by the Home Affairs Committee.

David Hanson (Labour, Delyn)

The hon. Member for Hornchurch is raising a wider debate on the use of control orders and wants me to respond to those matters. If you think it in order to do so, Mr. Cook, I am happy to respond to the general points that he has made, while addressing the amendments.

Frank Cook (Labour, Stockton North)

That will reduce the clause stand part debate.

David Hanson (Labour, Delyn)

I am happy to reduce the debate entirely, Mr. Cook, as you know.

Simon Burns (Conservative, West Chelmsford)

The Minister is back-tracking.

David Hanson (Labour, Delyn)

I am all for parliamentary scrutiny if anyone wants a discussion, but I think my hon. Friends are very happy to allow the Bill free passage in due course. Let us not go there for the moment.

The Committee will be aware that there is a control order regime in place and that on Monday we had a report on the review of control orders from Lord Carlile. In my view, a control order is a valuable tool in helping to prevent terrorist activity, where there is sufficient information for it to be put in place, subject to all the legal support and hoops it has to go through.

The hon. Member for Hornchurch will be aware that as of 10 December last year we have 12 control orders in place. We have had only 45 control orders in the entirety of the control order regime. I think it is a valuable tool in the fight against terrorism, but the Committee does not need to take my word for it. Lord Carlile—who is independent of Government and not a member of my political party—scrutinises these matters very strictly and has said that there would be a damaging effect on national security if the control order regime were removed. From my perspective, there is a clear need for the control order regime to stay in place.

The Bill is not about introducing new powers related to control orders. Parliament agreed the powers in 2008. We have the S and Marper judgment. The provisions in the Counter-Terrorism Act 2008 have not yet commenced. Amendments 10 and 11 would delete paragraphs 4 and 12 of the new schedule to PACE. The practical effect of the amendments would be that a constable could no longer require a controlled

“person to attend a police station for the purpose of taking”

fingerprints or non-intimate samples.

I rest my case. People are placed under control orders because they could be undertaking activity that we believe to be extremely serious. The control order is a very serious power and is subject to external scrutiny and a number of legal hoops. If the amendments were accepted, we might not be able to secure non-intimate samples or fingerprints from such individuals, because they would not be able to attend the police station.

James Brokenshire (Conservative, Hornchurch)

Is the Minister saying that the power is new? In terms of the consideration of control orders, it is an interesting question whether the power is simply a codification of an extant power or whether something new is being added. I may have misunderstood him.

David Hanson (Labour, Delyn)

I will come to that point in a moment, if I may.

The powers are contained in other amendments to PACE made by the Counter-Terrorism Act 2008. If we accept the hon. Gentleman’s amendments, those powers will be removed, so a constable would not be able to require a controlled person to attend a police station for the purpose of taking fingerprints or non-intimate samples.

I accept the need for control orders and for certain individuals to be required to attend a police station. I believe that the amendments will principally cause practical problems and will not ultimately stop the operation of the controlled person’s activity by the police.

The amendments would also create a technical anomaly, in that they address the position only in England, Wales and Northern Ireland. Because the control orders fall under the Counter-Terrorism Act 2008, the amendments would create a difficulty in relation to Scotland. I ask the hon. Gentleman to reflect on those comments—I hope they are helpful, because that is the spirit in which I try to approach the Committee—and withdraw the amendments.

James Brokenshire (Conservative, Hornchurch)

We will reflect on what the Minister said about control orders. I hear what he says about utility and the statements of Lord Carlile, but as I highlighted at the outset, we believe there is a need to bring those suspected of terrorist acts to justice where possible by using intercept evidence. That is the difference between us in terms of the approach to be taken.

We believe that a review of the existing control order powers and their use is necessary. That will obviously have all manner of impacts, potentially including effects on the provisions to which the Minister has alluded, but I recognise that that debate is slightly wider than the power to require the attendance of those subject to control orders at a police station for the taking of non-intimate samples. In the spirit of the Minister’s comments, I beg to ask leave to withdraw the amendment.

Mark Oaten (Liberal Democrat, Winchester)

I beg to move amendment 101, in clause 6, page 13, line 16, at end insert—

‘15A Fingerprints and non-intimate samples may only be taken under sections 61(5A), 61(5B), 63(3ZA) and 63(3A) from a person at a police station.’.

The amendment speaks for itself. I seek clarification from the Minister that fingerprints and samples may be taken from a person only at a police station. He will forgive me; I do not have enough knowledge of the Bill to know whether it includes examples of situations in which samples could be taken on the street instead.

We seek absolute clarity that under the provisions, it will be possible to take DNA samples only within a police station and they cannot be taken in the street or where the arrest takes place. The obvious concern is the security of the samples if they were not taken in a police station setting. I seek reassurances from the Minister about the process in such circumstances and a guarantee that he agrees that a police station is the most appropriate place in which to take such samples.

James Brokenshire (Conservative, Hornchurch)

I rise to speak briefly to amendment 101. My understanding is that the power that is being created by clause 6 relates to the requirement to attend at a police station for a non-intimate sample and fingerprints to be taken. As I read it, it is a means of ensuring that the other powers contained in the Bill to enable relevant non-intimate samples to be taken should be used in that sort of environment.

The hon. Gentleman raises an interesting point as to whether simply because someone can be compelled to attend at a police station for a sample or a fingerprint to be taken, that is viewed as being exclusive or restrictive and what the development of practice is in connection with the taking of samples. Are we looking at things like mobile custody suites and, if the amendment were accepted, would it be sufficiently wide to cover what we mean by a police station? Would some form of mobile custody suite in the community or within a shopping area, which is what is being suggested at the moment, be covered? Is it intended that there should be the capacity to take samples or fingerprints in such an environment?

In flagging up the issue and saying that a sample can only be taken at a police station, the hon. Gentleman is asking the Committee to consider whether it would be more practical to look at other environments, provided that appropriate standards are maintained. The possibility of contamination would have to be considered. The environment in which samples are being taken has to be of an evidential standard in order to create a profile on the DNA database along the lines that we have debated previously in Committee. If we are seeking to provide that someone attends at a particular place, there should be clarity in the Bill. I agree with the concept of stating that it should be at a police station while recognising that the hon. Gentleman has raised some interesting points as to where technology may be taking us and whether in future, if the legal and forensic standards are met, samples could be taken in a setting outside the police station.

David Hanson (Labour, Delyn)

The amendment would mean that only samples taken without consent could be taken at a police station. The hon. Gentleman has asked a legitimate question about the circumstances under which that could be undertaken elsewhere. There are three such circumstances: court, prison or mental health hospital. There are also, as the hon. Member for Hornchurch has indicated a growing number of circumstances where that might happen on the street. We currently have mobile units operating in places like the Notting Hill carnival because there might well be arrests there and the police on duty would be required to remain on duty at that locality rather than returning to a police station elsewhere. There are a number of circumstances where that could be case.

I hope that that satisfies the hon. Gentleman. If it does not, can I tell him about one other matter which I hope will help the Committee? Wherever a sample is taken, it will be sealed for evidential purposes in front of the person from whom it has been taken. That sample is taken away to the forensic laboratory and is only unsealed there. Therefore, wherever the sample is taken, that process is the same. Although the provisional security of a police station might seem appropriate, the same principle would apply to a mobile unit at the Notting Hill carnival. If the bag was unsealed on arrival at the forensic laboratory, there would have been major contamination and the sample would not be valid. I hope that that addresses the hon. Gentleman’s genuine concerns.

Mark Oaten (Liberal Democrat, Winchester)

I am grateful to the Minister of State for that explanation, but it does not entirely satisfy my concerns. I entirely take the point about prisons, courts and buildings that are used for other criminal justice purposes, including a mobile police unit at the Notting Hill carnival. Will the Minister of State consider a form of words that says that the procedure could be carried out in a police station or a designated location? “Designated” would imply that it had been made clear that the work could take place in the location. I seek to rule out DNA being taken in the back of an individual’s car or in a side street in the middle of a riot. That would be inappropriate, and could give rise to concerns about contamination and security. Those are not the most appropriate locations. However, I accept the Minister of State’s point that “police station” is too narrow. If we had “or designated location”, that would overcome my concern about the procedure happening in what I think we would all agree are not ideal circumstances, and it would meet the Minister of State’s objective of using a prison, court or that kind of criminal justice setting. There is a way forward.

David Hanson (Labour, Delyn)

I hear what the hon. Gentleman says. I hope that I have assured him that sample security is the most vital aspect here, because ultimately the quality of the conviction downstream depends on the quality of the sample. It is not in anybody’s interests in the criminal justice system to have contaminated samples. My hon. Friend, the Under-Secretary, who will deal with many of these matters on a day-to-day basis, has indicated to me that later on technology may have sped up to such an extent that we wish to take samples in other places. I could simply accept the proposal from the hon. Member for Winchester that we have designated centres, but any number of places could be designated and the problem he has raised would not necessarily, therefore, be solved.

Mark Oaten (Liberal Democrat, Winchester)

It would be unlikely, however, that one could, on the spot, designate the back of somebody’s car or a street corner. The Minister of State’s point is a slight red herring. I am trying to rule out that kind of location. There must be a form of words that gives the Minister of State flexibility on location, but rules out such on-the-spot decisions about locations, which could never be designated.

David Hanson (Labour, Delyn)

I am always happy to reflect on such matters, but I shall not do so between now and when we complete consideration of the amendment. My view is that the majority of samples will be taken at a police station. There will be samples taken in courts, mental health hospitals and prisons, and in mobile units, and they may be taken at other venues that the police choose for whatever reason, including the person’s home if they happen to be housebound at the time. I cannot envisage all possible circumstances, and cannot find a situation wherein the hon. Gentleman’s suggestion would help our crucial capacity to get the sample in the first place. The suggestion might, therefore, be too restrictive, but as ever, I shall consider it with officials outside of the Committee. However, I ask the hon. Gentleman to withdraw the amendment today. We could look at the matter as part of the guidance or codes of practice for the police further to any legislative approval. If the hon. Gentleman will allow me, I shall reflect on his points, but I have given him sufficient information to show both the difficulties that we have and our policy objective.

Mark Oaten (Liberal Democrat, Winchester)

On that basis, I look forward to the Minister of State’s reflections, and I beg to ask leave to withdraw the amendment.

Clause 7

Mark Oaten (Liberal Democrat, Winchester)

I beg to move amendment 100, in clause 7, page 15, line 9, after ‘2008’, insert

‘other than an offence under section 1 and 2 of the Terrorism Act 2006’.

The amendment deals with the more severe qualifying offences in the clause that form the list, including murder, manslaughter and kidnapping. I am concerned about one set of offences within those qualifying offences. As things stand, under the clause the encouragement of terrorism would be regarded as one of the more serious offences.

We have talked in the past about the difference between incitement to terrorism, which is clearly a serious offence. I have no problem with something like that being included, but I am concerned about the phrase “encouragement of terrorism”, from a freedom of speech perspective, because that that could wrap up some individuals who, while not specifically inciting terrorism, were talking in general speeches about the encouragement of terrorism activities. I am concerned that by including that we are wrapping in a category of individuals who might suddenly find themselves clustered under the group of qualifying offences, which are the more severe ones.

I seek some reassurance from the Minister that we will not suddenly find individuals making speeches that are not incitement to terrorism, but in which they talk about encouragement of terrorism, being caught in this set of offences.

James Brokenshire (Conservative, Hornchurch)

I seek clarification from the Minister on the list that would be maintained under the clause. The Government document published at the time of their initial consultation on DNA retention in May 2009 included an annexe containing some 153 different offences, covering in large measure some of the qualifying offences that are now in the clause. In the context of the amendment, it would help me understand the clause if the Minister said how the final list was drawn up, which offences may have been removed, what is the rationale for that list. Perhaps he will mention the incorporation of the range of offences, including those in respect of which the hon. Member for Winchester mentioned his concerns, especially in relation to the encouragement of terrorism and the dissemination of terrorist materials. It would be useful if the Minister told us what the rationale is and told us about the approach taken in arriving at the list incorporating the range of offences in the clause.

David Hanson (Labour, Delyn)

It is legitimate for the police to wish to have DNA samples from individuals who are involved in that type of offences that the hon. Member for Winchester mentioned. It is reasonable for us to undertake that.

The proposal in the amendment expressly excludes important anti-terrorism measures from being included in the DNA clause. I consider it appropriate that conviction for such offences abroad should trigger the power for the police to take biometric material from UK citizens or residents on their return to the UK, so that that material may be on our police database. Similarly, a conviction in the UK would attract indefinite retention of the DNA profile.

Let us be clear. I am not against individuals saying that British foreign policy is bad or not agreeing with the way in which the Government approach an issue in respect of Iraq, Afghanistan, the middle east, Palestine, or whatever. That is not what this is about. However, if an individual has been convicted of encouraging terrorism or violent extremism, or if they have convicted of distributing material that indicates that terrorism is a good thing and should be encouraged, then I am sorry but I think that we need to keep some sort of tabs on their DNA, in case that individual who has been convicted of that simple encouragement or that simple distribution of material at some point downstream turns out to have been involved in an incident such as 7/7 or an incident that could further encourage the development of a terrorist plot.

I am sorry if I am a bit illiberal on this issue, but I would rather have such individuals on the database and being checked against activity that is taking place. If such individuals are on the database because they have distributed material or encouraged terrorism and subsequently we find that they have tipped over and undertaken some violent extremism and we are able to get a conviction because of that information on the database, then sorry—I am illiberal. I urge the hon. Gentleman to withdraw his amendments.

Mark Oaten (Liberal Democrat, Winchester)

The Minister clearly feels strongly about this issue and I must say that I have some sympathy with the argument that he has advanced.

Frank Cook (Labour, Stockton North)

I did not follow what the hon. Gentleman said.

Mark Oaten (Liberal Democrat, Winchester)

I beg to ask leave to withdraw the amendment.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I beg to move amendment 67, in clause 7, page 15, leave out lines 10 to 14.

I will be very brief on this amendment. I will not put it to a vote, and if the Committee permits me, I shall withdraw it, but tabling it gives me the opportunity to make a complaint that I frequently make on these occasions, which is that there is no power to amend a statutory instrument.

I accept that it is necessary to have a power given to the Secretary of State to vary the list because, after all, new statutes will be passed—inevitably so—and it may be thought that those future statutes will create offences that should be qualifying offences. Also, I will say in favour of the Government’s provision that at least it is brought under the affirmative procedure rather than under the negative procedure. However, as the Committee will know very well, there is no power to amend a statutory instrument brought under either the negative or the affirmative procedure, with the consequence that if the House approves part, but not all, of the statutory instrument that is then laid under the powers conferred by the Bill, it has to either approve or disapprove the whole of the statutory instrument. That is a very unsatisfactory state of affairs and points to a failure in our procedure.

I have frequently drawn people’s attention to that problem. This is another opportunity to draw attention to it. My point is a short one, namely that statutory instruments that are laid under these order-making powers should be amendable.

David Hanson (Labour, Delyn)

The right hon. and learned Gentleman has made a very wide point and it impacts not only on the Bill but on a wider discussion within the House. There are numerous opportunities, through representations to the Speaker and the Leader of the House, to raise such general issues.

All I will say about this measure, for which I am responsible, is that any changes that could be made will be made via affirmative resolution. That means that there is parliamentary scrutiny. If a Committee such as this one chose not to affirm the resolution, a Minister such as I would have to go back and take out the offending measures or amend the Bill accordingly, before undoubtedly bringing it back at some point in the future. So that power is still there.

I fully accept that there is no power to amend statutory instruments and I will not commit to giving such a power under the Bill. However, I understand the point that the right hon. and learned Gentleman has made. If we do not have the options outlined by affirmative resolution, we have to rely on primary legislation. Primary legislation is amendable—I accept that—but it is a rather more cumbersome process when we are dealing with a very fluid situation in relation to terrorism and terrorist activity. I accept the point that has been made, but I cannot accept the point that has been made.

Frank Cook (Labour, Stockton North)

That has been a very illuminating exchange. [Laughter.]

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I beg to ask leave to withdraw the amendment.

Clause 8

Clause 13

David Hanson (Labour, Delyn)

I beg to move amendment 48, in clause 13, page 28, line 3, leave out ‘37, 40, 43 to 50’ and insert ‘37 to 40, 43 to 54’.

Simon Burns (Conservative, West Chelmsford)

For the convenience of the Committee, would the Minister like to specify what the offences are?

David Hanson (Labour, Delyn)

Certainly—just so the hon. Gentleman does not try to say that I do not know what the offences are. They are causing or inciting child prostitution or pornography, controlling a child prostitute or a child involved in pornography, care workers being involved in sexual activity with a person with a mental disorder, care workers causing or inciting sexual activity, care workers being involved in sexual activity in the presence of a person with a mental disorder, and care workers causing a person with a mental disorder to watch a sexual act. Those offences should have been in the Bill, and they will be, if the amendment is accepted. I hope that as I have fessed up to the omission, the Committee will accept the amendment.

Clause 14

David Hanson (Labour, Delyn)

I beg to move amendment 36, in clause 14, page 28, line 41, leave out ‘arrested for or’.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss Government amendments 37 and 38.

The rest of the debate is in Hansard.