Protection of Freedoms Bill

Public Bill Committee, 29 March 2011.

Gary Streeter (Conservative, South West Devon)

I call Mr Clive Betts.

Clause 1

Clive Efford (Labour, Eltham)

I have been here 14 years, so it is reassuring to know that I have made my mark. I beg to move amendment 14, in clause 1, page 1, line 8, leave out ‘DNA profiles’ and insert ‘removal of profile from National DNA Database’.

Gary Streeter (Conservative, South West Devon)

My apologies. With this it will be convenient to discuss the following: amendment 15, in clause 1, page 2, line 27, at end add—

‘(6) Samples taken from which a DNA profile is obtained of an individual who is subsequently convicted of a crime will be held pending any further proceedings.’.

Amendment 16, in clause 3, page 3, line 14, leave out ‘or (5)’.

Amendment 17, in clause 3, page 3, line 17, before ‘charged’, insert ‘arrested for, or’.

Amendment 18, in clause 3, page 3, leave out lines 22 to 28.

Amendment 37, in clause 3, page 3, line 28, at end insert—

‘(d) prescribed circumstances will be set out in draft guidance by the Secretary of State which must be laid before both Houses of Parliament;

(e) the guidance must be approved by resolution of both Houses of Parliament;

(f) the prescribed circumstances must include rape and serious sexual offences.’.

Amendment 38, in clause 3, page 4, line 8, at end insert ‘, where matters relating to national security are involved’.

Amendment 27, in clause 8, page 7, line 34, at end add—

‘(3) Subsections (1) and (2) cannot come into force until—

(a) an inquiry has been conducted by Her Majesty’s Inspectorate of Constabulary into the evidential basis for the benefits of taking DNA from persons given a penalty notice,

(b) the recommendations of that inquiry have been reported to the Secretary of State,

(c) the report of the inquiry has been laid before, and approved by affirmative resolution of, both Houses of Parliament.’.

New clause 1—Destruction of data relating to a person subject to a control order—

‘(1) This section applies to material falling within subsection (2) relating to a person who—

(a) has no previous convictions or only one exempt conviction or excluded offence, and

(b) is subject to a control order.

(2) Material falls within this subsection if it is—

(a) fingerprints taken from the person, or

(b) a DNA profile derived from a DNA sample taken from the person.

(3) The material must be destroyed before the end of the period of two years beginning with the date on which the person ceases to be subject to a control order.

(4) This section ceases to have effect in relation to the material if the person is convicted—

(a) in England and Wales or Northern Ireland of a recordable offence, or

(b) in Scotland of an offence which is punishable by imprisonment, before the material is required to be destroyed by virtue of this section.

(5) For the purposes of subsection (1)—

(a) a person has no previous convictions if the person has not previously been convicted—

(i) in England and Wales or Northern Ireland of a recordable offence, or

(ii) in Scotland of an offence which is punishable by imprisonment, and

(b) if the person has been previously convicted of a recordable offence in England and Wales or Northern Ireland, the conviction is exempt if it is in respect of a recordable offence other than a qualifying offence, committed when the person is aged under 18.

(6) For the purposes of that subsection—

(a) a person is to be treated as having been convicted of an offence if—

(i) he has been given a caution in England and Wales or Northern Ireland in respect of the offence which, at the time of the caution, he has admitted, or

(ii) he has been warned or reprimanded under section 65 of the Crime and Disorder Act 1998 for the offence, and

(b) if a person is convicted of more than one offence arising out of a single course of action, those convictions are to be treated as a single conviction.

(7) In this section—

(a) “recordable offence” has, in relation to a conviction in Northern Ireland, the meaning given by Article 2(2) of the Police and Criminal Evidence (Northern Ireland) Order 1989, and

(b) “qualifying offence” has, in relation to a conviction in respect of a recordable offence committed in Northern Ireland, the meaning given by Article 53A of that Order.’.

Clive Efford (Labour, Eltham)

Welcome, Mr Streeter. I have approached this morning with an increasing fear because I have been suffering from a bad cold and cough for about four weeks now. I have been unable to shake it off, so I hope that I will make it through all the clauses without collapsing in a coughing fit.

It is a pleasure to be here this morning. I had a look at the profile of Conservative Members because during the evidence stage I noticed that a number of lawyers were present. I have discovered that every Conservative Member of the Committee is a lawyer of some sort. [Interruption.] Well, I must go back to my office and check my research. I would not want to offend anyone in that way. I will go back and make sure that those responsible are suitably admonished. I am assuming that everybody else is a lawyer. That led me to question whether there was a collective noun for a group of lawyers—a fee, a charge or an expense of lawyers. Perhaps the hon. Member for Northampton North can help us with that.

Let us get on with debating the amendments in the group before us. I started considering the issue of DNA when the Bill was first proposed. I approached with an open mind the question whether DNA data should be kept for three or six years because I accepted that a degree of balance was required in terms of what might be necessary in the future. As I considered the issue, I discovered that there are many misconceptions about what data are held, where they are held, who holds them, and what the terms “database” and “samples” mean. There is a great deal of confusion about that, even among some of the expert witnesses from whom we heard. The purpose of amendment 14, which would change the title of the clause, is to highlight that even in relation to the Crime and Security Act 2010, which was debated only 18 months ago, there is a misconception in some people’s minds about what exactly we are dealing with. The Bill states that we should destroy the DNA profiles, which gives the impression that they are something of substance or something physical, rather than an electronic piece of data.

People also have misconceptions about what the police have access to. It is the terminology that we use that opens people up to the misconception that the police have access to information that can show whether someone is male or female, whom they may be related to or even possibly their country of origin. All those mistakes appear to come from the misconception that the database holds intimate information that can be accessed and used for purposes other than that for which it was obtained in the first place. Amendment 14 highlights that confusion.

That confusion has bedevilled the debate, even regarding the 2010 Act. The use of the word “destruction” in the clause title suggests something physical rather than electronic data, as I have said. We need to be clear about what the clause means when it refers to the destruction of material—whether it relates to the information on the database or to physical samples. It is clear from the evidence we have heard that some people are very confused about that. They confuse profiles with samples and even detailed structures of DNA, which is after all the blueprint of everyone in this room.

People are right to be precious about such information because it is very intimate, and we have a duty to protect people from any intrusion into information that is extremely personal. But we also have a duty to make sure when we discuss these matters that we are in full possession of the facts and that we understand exactly what we are dealing with before we remove data from the database in a way that could seriously restrict the ability of the police to solve crime and protect the public.

As part of my education on this subject, I went to visit the Forensic Science Service for it to take me through the process, so that I could understand exactly what we are talking about. The science of extracting DNA data from samples was new to me. I shall briefly describe the process.

A sample is taken, let us say from a scrape from the inside of someone’s cheek, using a swab. The swab is then submitted to the forensic science laboratory for DNA analysis. First, several reagents are ready to remove the DNA, and it is processed to extract DNA from the additional cellular material. It is then processed in batches. The issue of batches is very important, and we will come to that under several clauses as we debate the Bill. The batches are processed to generate a DNA profile from each swab submitted. The DNA profile is a string of numbers, according to the size of the different strands, and it is the string of numbers that is loaded on to the DNA database.

In one part of the process a machine effectively measures the size of each strand of DNA—like taking a photograph of the different strands passing through the machine at different speeds—to generate the string of numbers that make up the DNA profile. Those numbers are loaded on to the national DNA database, which runs a check over new profiles, the Police and Criminal Evidence Act 1984 and crime scene material overnight to see whether there are any new matches. That is important, because when we discuss the Bill—many people made this mistake on Second Reading, even the Secretary of State at times—people rightly become emotional about the retention of personal DNA material, the actual physical samples. However, with the national DNA database we are talking about a series of numbers. Those numbers can be removed from the database. The problem with the material held by the Forensic Science Service is that it is difficult to extract. It cannot be separated from any DNA profiles that we want to retain—to lose one profile would be to lose them all.

I asked the witnesses what bothered them most about the retention of DNA. Was it the fact that an organisation held physical properties from DNA samples, or was it that the DNA information was on a national computer and was searchable? Their answers were unequivocal: it was both. It was not just the fact that the DNA profile was on a searchable database, it was the fact that somebody held that personal piece of information elsewhere. That leads to a problem.

The Forensic Science Service in Lambeth road has a small machine that processes the DNA in batches of about 20. The Forensic Science Service has a much bigger machine that does them in batches of about 90, of which about 80 are the samples actually being extracted, the others being controls. Once those machines have produced the information, it is stuck there. We can get rid of the whole batch, but it is not possible to get rid of one part of the batch. So we need to be clear what we are doing when we talk about the destruction of DNA profiles. The impression is given that we are destroying everything, but we are not. Under the clause, the DNA profile is removed from the DNA database.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

Is the hon. Gentleman advocating that the batch system should be changed to an individual one?

Clive Efford (Labour, Eltham)

That is a very good question, and I am delighted that the hon. Gentleman is listening to me. That is exactly where I am about to go.

I asked the Forensic Science Service the cost of carrying out the process individually. For the machine that does 20, the cost would increase approximately fivefold. It was unable to provide an exact figure, and I do not want to put it on the spot. For the process that takes place in Birmingham, the cost would increase many times, and it is not practical. The machines are not constructed to do just one DNA profile regularly, although that can be done when the police are dealing with a serious crime and need to process the data quickly.

I was also shocked that some of the witnesses were not fully conversant with the details. I should have thought that someone advocating this major change would have bothered to ask the Forensic Science Service or another forensic body about the process. When Isabella Sankey of Liberty was asked about it, she spoke of people who, although they

“might not know their parentage or ethnicity, the police have access to material that can tell them that information.”

That is completely and utterly wrong. It could not be more wrong. If the police had access to the numbers, that would not tell them anything. The Minister is shaking his head, and perhaps he will ask me to explain if he does not understand something.

The DNA database has a string of numbers, and I understand that the police do not necessarily have access to those numbers—all they know is that there is a match—and if they did, the numbers would not provide the information. I spoke to a scientist at the Forensic Science Service who had been there for many years, and we looked at a more detailed graph than would be on the national database. He said that he could not tell much from the graph, which just showed spikes instead of a string of numbers such as a set of lottery numbers. To suggest that the police have access to such information is completely wrong, and to have this debate on the basis of that is bound to influence how people will react to the discussion. Does the Minister want to intervene?

James Brokenshire (Conservative, Old Bexley and Sidcup)

The DNA profiles contain sensitive information, and include an x or y chromosome indicating sex, and close relatives. There have been cases of familial links being made. The hon. Gentleman is not right in saying that nothing sensitive is involved.

Clive Efford (Labour, Eltham)

I am grateful to the Minister, but this is where the confusion arises. The police do not have direct access to that information. They would have to return to the material that is held by the Forensic Science Service to obtain such data. We can check that out and see whether I am right, but I have asked that specific question, and I believe that I am right. That is not what is on the national DNA database, and such information cannot be extracted from it. Having made a link, one can go back and check the further details held by the Forensic Science Service.

Dr Metcalfe of Justice also said:

“I am not technically equipped to second-guess why the Forensic Science Service organises itself in the way that it does.”––[Official Report, Protection of Freedoms Public Bill Committee, 22 March 2011; c. 60, Q 177 and 178.]

I have set out why that is—for practical reasons of cost and time—but it is extremely disappointing that people who are lobbying forcefully for changes have done so without making themselves fully aware of the process and of the facts about the data that we are dealing with. That is why I moved the amendment—to highlight the problem.

Few have taken the trouble to consult scientists. As I said, we have a plethora of lawyers in the Committee, and this place has the habit of not even entering a room without consulting a lawyer, but heaven forfend that we should check with scientists about scientific process.

I should be grateful if the Minister would confirm that the information to which the title of the clause refers is electronic data. Can he confirm that the police will only be able to check that a person is on it? I note his point, but I suspect that that is further investigation, other than the DNA check, which is run overnight. Can he confirm that they do not routinely have access to any details of a person’s DNA profile? Of course, in further investigation they might obtain more information from forensic science services. Can he confirm that the information that we are talking about on the national DNA database is a string of numbers?

Tom Brake (Liberal Democrat, Carshalton and Wallington)

As a point of possible clarification, I received a useful letter from the Information Commissioner yesterday:

“My expectation is that deletion will mean deletion of any retained individual DNA sample”,

going on to mention

“the numerical profiles generated from these and held on the National DNA Database.”

Clive Efford (Labour, Eltham)

Separate clauses deal with samples, but again, we are slipping into confusing samples with the electronic data. The hon. Gentleman is quite right, we will be destroying samples, but discussion of that will come up under other clauses. The issue that we are talking about is the removal of the ability to search the national DNA database.

It is possible to remove single strands of information about one individual from that database, but it is not possible to remove the single piece of information that has produced the string of numbers from the batches held by forensic science services. Going back further, it is possible to destroy the samples from which the DNA strand was extracted. The process is complicated, but we need to understand it.

When the Minister responds, can he also confirm that it is not possible to destroy the information held in the batches at forensic science service providers, such as the Forensic Science Service, and that the personal details they extract will remain on their systems? I accept that it will be possible to remove the personal details, so that records cannot be linked to what is on the national database. However, the point of principle, according to those who gave evidence to us, is that, even so, that personal information remains in the possession of an organisation, which they believe should not be the case. That highlights the complexity of the issue, and our suggested step of removing that information from the national database does not necessarily satisfy all the complaints that people are making about the retention of DNA information.

Can the Minister comment on whether the Government might have any intention of requesting that DNA profiles are processed individually, so that they are not stuck on those batches at forensic science services in future? Have the Government looked into that? Have the Government estimated what the costs might be, and are they included in the £2.9 million on-costs resulting from the Bill?

Does the Minister agree that the use of the word “destroyed” in the clause gives the wrong impression of the process involved in meeting the Bill’s requirements and does not accurately account for the fact that DNA data will be retained by forensic science services laboratories? I do not intend to speak to amendment 15, which relates better to clause 2. I can raise the matters that relate to that amendment in a stand part debate, because they refer to samples rather than to DNA profiles.

Gary Streeter (Conservative, South West Devon)

Order. It may help the hon. Gentleman to know that amendment 15 is in this group of amendments, so it may be as well to debate it now.

Clive Efford (Labour, Eltham)

I will be guided by you, Mr Streeter, but the questions that are raised by amendment 15 are not relevant to clause 1. I can make those points in a stand part debate rather than in this debate on amendment 14. If the Minister wishes, I shall discuss amendment 15, but I shall deal with amendments 16 to 18 for the present.

Under clause 3, people who are arrested for a qualifying offence will have their DNA retained for a period of three years, as set out in subsection (6); we have tabled other amendments to suggest a period of six years. The Select Committee on Home Affairs investigated what should be the threshold for taking and retaining DNA and fingerprint data in its report on the national DNA database in March 2010. It concluded that the threshold should be arrest, and that arrest should be a very high threshold for qualification. It was concerned about tiers of innocence—that people who were convicted of a minor crime were treated differently from those convicted of a serious crime, and that people who were arrested, but not convicted, for a violent or sexual assault might have their DNA retained. There were differences in the thresholds for people having their biometric details, fingerprints and so on retained. The Committee felt that such a situation was not acceptable. It felt that someone’s being arrested and taken to a police station should be the threshold for retaining DNA.

My right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) intervened on the Secretary of State on Second Reading, asking her to confirm that there were cases in which innocent people might have their data retained. The Secretary of State indicated that it would be possible for chief officers to make such applications, but the circumstances in which that would apply were not made clear. We are concerned that innocent people may be subject to some sort of public hearing in relation to the retention of their DNA.

In the context of the Secretary of State’s response to my right hon. Friend, to whom would the chief officer apply? Do the Government intend to prescribe every circumstance in which the chief officer should do so, outside issues relating to national security? How far will that go? If physical samples are to be included under the measure, will the Minister clarify which ones? There is no reference to a case where someone is convicted but continues to protest their innocence. What happens to physical samples in those cases? There is a likelihood that in an appeal on such cases, new evidence may come forward, which would mean that samples need to be re-examined. Will the Minister say what consideration has been given to the retention of samples in cases where further proceedings may be necessary? I would be grateful for clarification on that point.

On amendments 37 and 38, is it the intention to allow the commissioner for the retention and use of biometric material to deal with matters that are not related to national security? Clause 20 deals with the position of the commissioner. It clearly states that he has a role in relation to national security. I refer to the earlier reply from the Secretary of State. Again, it would be helpful if we could have some clarification on what she was referring to when she said that it will be open to the chief officer to apply for the material of innocent people to be retained. In those circumstances, will the chief officer apply to the commissioner or the magistrate or the DNA strategy board to ask to retain the DNA?

Which crimes will the Secretary of State prescribe where people are arrested but not charged or cautioned? If it is her intention to prescribe outside of national security, we would want to see the Secretary of State prescribe cases such as serious sexual assaults and attempted rapes, where there is often no conviction. The nature of those crimes means that they often do not go to court, because the victims often feel intimidated and disinclined to pursue the case. That prescription would ensure that those who have been involved in those crimes are recorded and their DNA retained for future reference. There are a number of cases where that has led to people being convicted, which we may return to in the debates on later clauses.

Amendment 38 is a probing amendment—as most of them are—on the role of the biometric commissioner. Will the commissioner have a responsibility outside of national security, or are they just restricted to national security? The Committee must forgive me if I have missed it in the Bill, but I am not clear what the role of the commissioner for the retention and use of biometric material is in regard to crimes other than those related to national security. Again, the amendment comes from the response by the Secretary of State, in which she indicated that chief officers would be able to apply to someone to retain the data of someone who has not been convicted or charged with a crime. Will the Minister clarify the role of the commissioner on that?

Amendment 27 would amend clause 8, which deals with penalty notices. We know that penalty notices can be issued for trivial matters. There are two types of penalty notice: those that are issued on the spot like a summary fine, and those for which there is arrest. Bearing in mind that the Home Affairs Committee recommended in its report that arrest should be the threshold for the taking of biometric details, the amendment is intended to obtain clarification from the Government on the position of those who have been issued with penalty notices. Given that penalty notices can be issued to children as young as 10, we would not want someone who has committed two minor offences and received two penalty notices at a very early age to end up on the DNA database. That is an important point, which was made by the hon. Member for Carshalton and Wallington on Second Reading. I believe I am right that, after two trivial offences, the information will be retained. I shall be grateful for clarification from the Minister.

Gareth Johnson (Conservative, Dartford)

Will the hon. Gentleman concede that it is not necessarily the case that fixed penalty notices are given to minors for trivial matters? As also applies when people commit shoplifting and those sorts of offences, it is still open to the police to offer reprimands and final warnings before even getting on to fixed penalty notices. That is a third tier of the process that has to be gone through before a minor is given a fixed penalty notice.

Clive Efford (Labour, Eltham)

I am sure the hon. Gentleman is right, but the purpose of the amendment is to find out when the Government intend penalty notices to be used. Many clauses in the Bill refer to abuses of process and of power. People might consider it an abuse of process that someone who is innocent, is arrested in a case of mistaken identity or has a sample of DNA taken illegally is subject to a speculative search. The amendments are to enable us to find out where the Government are, because we would not want—I am sure that the Minister will respond to this—penalty notices to be abused to obtain someone’s DNA. These probing amendments were tabled to ascertain from the Government whether the use of penalty notices might result in people, particularly young people, being on the DNA database for trivial matters.

New clause 1 is probing and relates to people who are given control orders. Given that there have been recent and controversial changes to the control orders regime, I would like the Minister to put on record the Government’s intentions about the retention of the DNA and fingerprints of people who are or have been under control orders. Under the regime brought in by the 2010 Act, if someone is put on a control order and, by definition, has not been convicted of a crime, the DNA will initially be retained for six years. Once the control order is lifted, it will be retained for two years, or it will be held until the end of the control order. The period of retention can also be extended using the national security provisions.

Under the Bill, I am not clear what will happen and I would be grateful for the Minister’s clarification. If a person held under a control order is not convicted of any crime, will their details still be retained? The national security provisions suggest that the details can be held for two years—is that correct?—and that that can then be renewed indefinitely at the request of a chief officer to the commissioner for the retention and use of biometric material. Will the Minister clarify that?

Can the person on the control order have their DNA held for a period without the control order having to be renewed? For what length of time will the material be retained? What determination will the chief officer have to make to extend the retention period? Will the Secretary of State issue guidance on that, or will it be subject to guidance from the biometric commissioner? How will the introduction of terrorism prevention and investigation measures affect the way people’s DNA and fingerprints are treated? Will the Minister provide clarity on that area of policy? Again, this is a probing amendment to clarify the Government’s position on the retention of such information belonging to people subject to control orders.

With that, I have covered all the amendments. I look forward to the Minister’s response.

Gary Streeter (Conservative, South West Devon)

Before I call the Minister, I want to clarify a point on amendment 15, which is being debated as part of this group. There will be a stand part debate on clause 2 once the Committee has made its decision on clause 1. If hon. Members wish to make comments during the clause 2 stand part debate that happen to touch on earlier amendments, it is acceptable as long as the comments are directly relevant to clause 2 and do not unnecessarily repeat earlier debates. I hope that is helpful.

James Brokenshire (Conservative, Old Bexley and Sidcup)

Thank you, Mr Streeter. I am sure we all feel suitably guided by your comments and will respond accordingly.

At the outset, I wish the hon. Member for Eltham good health. I am sure none of us would wish him to expire. [Interruption.] That has prompted him to have a slight coughing fit, so I hope his condition is not deteriorating further, but I am sure we all wish him well in his deliberations on the Bill and in his consideration of various points as we progress through these clauses on the retention of DNA.

I welcome the vast array of legal advice on this Committee, which the hon. Gentleman has highlighted, and I am also grateful for the non-legal advice that is very much resident on these Benches to provide other support, guidance and input on our consideration of the Bill.

At the outset it is worth stating that we agree that the use of DNA can be an important evidential tool in prosecuting crimes and bringing offenders to justice, but, as I think we will debate this morning and throughout this Committee stage, the use of technology must strike the right balance between the promotion of the wider public interest, public safety and the protection of important private life interests. That is the nub of today’s debate.

On the amendments, in many ways the hon. Gentleman is right to seek to set out the basis for the way in which DNA samples are processed and to give some further background to that. I welcome the fact that he has taken sufficient interest to prepare and inform himself by visiting laboratories and inquiring in that way. On his specific point about derived information, DNA does contain some of the sensitive information that I highlighted in my intervention, such as the familial links that can be made. That is why the Information Commissioner and others have rightly identified that it is sensitive, and why it is pertinent for a proportionate regime to be adopted on the retention of such information.

The hon. Gentleman talked about DNA samples and the processing that they go through to generate a computer profile. He is right to say that DNA samples are processed by the forensic suppliers in batches and that they are destroyed in batches. To do otherwise would greatly increase the cost. Generally speaking, each batch contains 96 samples and is normally composed of 82 live and 14 control samples as part of the quality process. Until that quality process is complete, the 82 live profiles will not have been satisfactorily derived. It would be inappropriate to destroy the samples until that process was complete. Once processed, the profiles can be separated and destroyed individually. The remaining information is held anonymously by the provider, as provided for by clause 13(2). On the individual samples, we will debate that issue when we get to the relevant clauses, which the hon. Gentleman has rightly identified.

On whether we would consider taking or processing the individual samples, the hon. Gentleman perhaps misses the point, because the samples that are taken are processed to derive a computer profile, which is then stored. We are then separately dealing with those individual samples and their destruction. In essence, he is simply alluding to the processing. In its evidence last week, Genewatch UK indicated that it was not an issue of significant concern. The retention of anonymous information, which neither the Government nor the Information Commissioner consider as a significant intrusion, is perhaps the only residual information that may be left. We are seeking to ensure that any such data would be anonymous to avoid intrusion on such significant issues.

Amendment 15 would require DNA samples to be retained where an individual was convicted of an offence, pending any further proceedings and, presumably, the outcome of any appeal. That approach contrasts with the position in clause 14, which requires that all samples taken under the Police and Criminal Evidence Act are destroyed within six months. That shows the interrelationship between clauses 1 and 14. Both this Government and the last have been advised consistently by the National DNA Database Strategy Board that, once a profile has been derived satisfactorily by the forensic science provider, including the carrying out of the appropriate quality checks, there is no need to retain the biological sample. I understood that to be a point of agreement between us about those samples and the provisions in clause 14.

John Robertson (Labour, Glasgow North West)

I hope that the Minister will excuse my ignorance if this point was dealt with earlier. In a cold case, which has been shelved for a while, would any DNA evidence be destroyed after six months, or would it be kept until modern technology found an answer to the problem?

James Brokenshire (Conservative, Old Bexley and Sidcup)

The hon. Gentleman makes an important point of clarification. We are discussing individual samples taken from people under the Police and Criminal Evidence Act, which means there has been an arrest and a DNA sample has been taken. We are not talking about, for example, crime scene samples, which are not covered by the retention regime. Crime scene DNA is retained for further investigation. We are specifically talking about a profile and a DNA sample that have been taken after an arrest. I hope that that clarifies why we believe—even the previous Government believed it—that it is appropriate to regulate the retention of DNA profiles taken following arrest. There is a cold case database against which those samples can be compared.

John Robertson (Labour, Glasgow North West)

I thank the Minister for that. Perhaps he could clarify a bit more. Imagine a case where several people are arrested, but not charged, and then released. Their DNA is taken and is in the cold case, which is still ongoing, but, over time, people may forget about it. Is that DNA destroyed, or is it kept until the case is done away with?

James Brokenshire (Conservative, Old Bexley and Sidcup)

This is where we reach a separate issue. DNA is perhaps taken from someone on arrest in relation to an investigation, and the processing takes place to derive the DNA profile computer record. There is then the opportunity to perform a speculative search against the cold case database to pick up any matches. Once the decision has been taken not to charge an individual—they have been arrested in relation to an investigation, which has followed through—they have their DNA profile destroyed, in essence, following the determination of no further action. In other words, there has been no decision to charge in that case, at which point the DNA profile is destroyed, unless there are certain prescribed circumstances.

This touches on another point that I will come on to, surrounding issues of vulnerability, and where the police might be able to apply to the biometrics commissioner to retain the DNA profile for three years in those circumstances, with the potential extension to two years. I hope that that addresses the hon. Gentleman’s point.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

The Minister may be aware that Liberty has expressed concerns that people might be arrested simply to capture their DNA. Is he confident that that sort of scenario cannot occur?

James Brokenshire (Conservative, Old Bexley and Sidcup)

I hear the hon. Gentleman’s point on people being arrested in order to harvest their DNA. We have seen no evidence that that is taking place in practice. Indeed, the hurdle for arrest is well understood. While I recognise the concerns that an arrest might be made simply for the purposes of garnering DNA to create a profile, that is not borne out by the evidence we have heard.

Michael Ellis (Conservative, Northampton North)

Would that not also open the police up to a civil action for false arrest?

James Brokenshire (Conservative, Old Bexley and Sidcup)

This is where I defer to the legal knowledge that no doubt sits behind me. I am sure that my hon. Friend’s expertise and experience mean that he must be right in that case, and I would certainly not wish to challenge his legal assessment of this issue.

It is worth highlighting that material is also held on police case files, in accordance with the code of practice issued under the Criminal Procedure and Investigations Act 1996, so that it can be disclosed to the defence in any subsequent proceedings. We are considering whether there are any issues that may interpose in relation to that, so I can confirm that there is further examination taking place around that Act.

However, the general principles that I have outlined are clear in terms of the destruction of the DNA sample following the creation of the profile. Under the old Crime and Security Act, if there was a dispute as to the veracity of the profile that had been derived, there would be the ability to take a further sample under those circumstances; for example, if there was legal dispute as to whether the profile had been correctly produced following the arrest and initial sample being given. I can see the hon. Member for Eltham looking at me, so I will sit down and give way to him.

Clive Efford (Labour, Eltham)

I am grateful to the Minister. Could he clarify the position in relation to someone who is perhaps found guilty, but still pleads their innocence, and who faces the prospect of an appeal? Is there a procedure for giving guidance on the retention of samples in those circumstances, where they might be needed for re-testing? The Forensic Science Service tells me that it gets weekly requests for such tests, so this is an issue for it.

James Brokenshire (Conservative, Old Bexley and Sidcup)

It is a question of which samples the service is talking about. Clearly there is a need to protect crime scene samples to ensure that, on further investigation or appeal, they can be checked, that discussions and debates over those issues are properly heard, and that justice can be done. That is why we are distinguishing between a profile that is derived following arrest and a crime scene profile—the point made by the hon. Member for Glasgow North West—and why I have sought to be clear about the distinction between the two regimes, as well as the operation of the Criminal Procedure and Investigations Act 1996 and the preservation of crime scene and other information in the context of justice. We are talking about the specific avenue of the taking of samples following an arrest under PACE and the creation of a profile derived from the sample. I acknowledge that the area is complex, and that we shall get into further complexity as we progress through this part of the Bill.

John Robertson (Labour, Glasgow North West)

The Minister is being very helpful. Another thought has come into my head. Let us imagine that the suspect is arrested and the DNA taken. Subsequently, the suspect is not charged, but he is still a suspect and will remain so as long as the case is open. What is the position of the DNA?

James Brokenshire (Conservative, Old Bexley and Sidcup)

My understanding is that, if a person has been arrested, under the Crown Prosecution Service requirements a charge would have to be brought within the normal period of about six months in relation to the investigation into the case or there would be a decision that no further action was to be taken. It is at that point that the CPS makes its determination of what should happen and whether the case is to proceed. A determination would then be made by the CPS whether to charge.

The only circumstances in which matters might be different is where there are issues of vulnerability or factors that the Home Secretary spoke about on Second Reading in respect of crimes of violence or sexual crimes. A period of retention of three plus two might be available in those specific circumstances following arrest but not charge, where the police might be able to apply and seek for that regime to operate. I will come on to that issue shortly, as the hon. Member for Eltham referred to it.

I am conscious of the fact that I must refer to several other matters, although to be clear I must point out that we shall not be destroying crime scene profiles, so there should not be a problem with cold case appeals. There is no need to retain individual samples, a point that was understood in the discussions on the Crime and Security Act, too, because a fresh sample can be taken if an appeal is required. Such a discussion took place in debates under the previous Labour Government, when such matters were considered carefully. To avoid some circumstances that the hon. Member for Eltham is understandably and rightly probing, a further sample can be taken so that no miscarriage of justice may arise. I hope that I have been of assistance to him on such points, that I have clarified matters and ensured that the Committee understands them.

Amendments 16, 17 and 18 highlight what is perhaps a major point of difference between the Government and the Opposition. As set out in the Crime and Security Act, Opposition Members believe that it should be possible to retain an individual’s DNA and fingerprints purely on the basis that a police officer at a particular moment had reasonable grounds to believe that an individual had committed a recordable offence, which is the evidential test to make an arrest. However, the Government consider that further safeguards are necessary before biometric material and profiles can be retained. First, it should be necessary for the arrest to be for a serious offence. Secondly, we think that either the police or the CPS should believe there is sufficient evidence for there to be a realistic prospect of conviction—the test for charging—and a much higher level of evidence. Alternatively, where it has not been possible to charge an individual with a serious offence—such as where witnesses have been intimidated—any decision to retain DNA and fingerprints should be taken by the independent commissioner for the retention and use of biometric material, not the police.

The hon. Member for Eltham raised a general point in relation to that. He will have read the Home Secretary’s comments on Second Reading, when she indicated that, if the police believe there are sufficient public protection grounds to justify the retention of material following an arrest for a qualifying offence that does not lead to a charge, the Bill should allow them to apply to the biometrics commissioner for the retention and use of biometric material, who will decide whether retention of the DNA profile and fingerprints of the arrested person is justified. That is in essence captured by subsections (11) and (12) of clause 3, which provide for the detail of such a scheme to be set out in secondary legislation. As the Committee heard from Chief Constable Chris Sims last week, we are working with the police service to ensure that the appropriate mechanisms and clarity are provided.

We have been very focused on the impact of changes. I am sure that the hon. Gentleman will come to this point. We look to the past as a good indicator of the impact of DNA retention and detections. The previous Government changed the law in 2003 to take material on arrest rather than charge. Yet, at that time, there were around 36,000 detections against a database of a much less significant size than now. Whereas, in 2009-10—with all the changes that the previous Government made—creating what is effectively indefinite retention and seeking to ensure that as many DNA profiles are created as possible—there are 4.8 million profiles on the DNA database, yet the number of detections is 32,000, so it has gone down considerably, notwithstanding the significant growth in the database. We, therefore, believe it is appropriate to look at past evidence. The previous Government’s approach was seemingly to say, “We need to retain everything. We need to get as much as possible. This will detect and solve more crimes.” However, that was not borne out by the evidence of the number of detections that arose as a consequence of that policy. That is why I rebut a number of the criticisms that have been made, such as the point that simply reducing the number of profiles on the DNA database will automatically lead to a reduction in detections. The DNA database has grown and grown, but the detections have gone down and down.

Clive Efford (Labour, Eltham)

I do not doubt that the Minister’s figures are correct, and that the number of people on the database, as a result of retaining everyone’s DNA profile, has exponentially increased out of proportion to the number of detections. However, the debate has moved on, since the passing of the 2010 Act, to whether the period should be six years or three years. There is an evidence base for suggesting six years. The Select Committee concluded that it should be a minimum of three years, but it could be more. We are not talking about everybody’s profile any more; we are talking about whether the profiles should be kept for six years or three years.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I am grateful for the hon. Gentleman’s clarification that the Labour party has moved on, and that it now believes that DNA should not be retained indefinitely and is instead focusing on six years. One gets the sense, however, that it has done that grudgingly, and that was not what the previous Government would have preferred to do—their starting point was to retain indefinitely. Given the hon. Gentleman’s indication, perhaps he would have preferred indefinite retention. Would he like to suggest that he did not, or does not, believe that it would be better to retain indefinitely? I take it from his lack of intervention that he does believe that, but we will no doubt have more clarity as we further consider the issue.

Clive Efford (Labour, Eltham)

What we are debating is the Bill before us. Evidence produced by the Home Office led to the previous Government making the decision, as a result of the S. and Marper case, to fix at six years the length of time for which the DNA of innocent people—those not charged or cautioned—could be retained.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I am grateful to the hon. Gentleman for highlighting the hazard rate analysis, which I am sure he has closely read, because it interestingly states:

“However, most of the incremental offending risk of the NFA group is dissipated some time before this point—

the six-year point—

“as indicated by the relative flatness of the hazard rate curve after, for example, three years…The shape of the hazard rate curve indicates how significant offending risk is in the years immediately following an initial arrest. This means that the choice of shorter retention periods is quite robust to the sensitivities introduced by these errors and assumptions.”

The evidence that was proffered to justify six years is not clear-cut in the way that the hon. Gentleman suggests. When the Information Commissioner gave evidence to the Committee that considered the Bill that became the Crime and Security Act 2010, he said that that did not justify anywhere near six years. I think that he repeated that in evidence to this Committee last week and said that he was satisfied with a three-year retention period on the basis of the very evidence that the hon. Gentleman says supports his view on six years.

Clive Efford (Labour, Eltham)

I am prepared to concede that the hon. Gentleman might be right about three years. If he casts his mind back to the time when the 2010 Act was passed, he will remember that the previous Government suggested that what was needed was a detailed review of whether six years was effective and a reconsideration of the length of time for which profiles were retained. The problem with the Bill is that we will destroy everything that has been retained for three years, so we will never be able to carry out that assessment in detail.

James Brokenshire (Conservative, Old Bexley and Sidcup)

The interesting point in the hon. Gentleman’s analysis is that for the peak period of offending, which he would probably accept is in the range of 12 to 19 years, the previous Government were prepared to adopt a shorter period so that if someone was not convicted, their DNA would be retained for three years. There seems to be an agreement on three years, so it is interesting if the hon. Gentleman is trying to unpick that by saying that the time should increase again to six years. The hazard rate analysis highlighted that the largest risk might occur in that range for young people, yet the previous Government seemed happy to allow three-year retention in that very case.

Clive Efford rose—

Gary Streeter (Conservative, South West Devon)

Order. It might help the Committee if I point out that we will debate the issue of three or six years when we consider a later group of amendments, so it might now be time to move on to other issues.

Clive Efford (Labour, Eltham)

I will be guided by your comments, Mr Streeter.

James Brokenshire (Conservative, Old Bexley and Sidcup)

We have had a clear indication of the way in which some of our later debates will proceed, but we shall certainly be guided by you, Mr Streeter, on how to proceed with this debate. I shall move on, as we have plenty to get on with in any event.

Amendments 37 and 38 would place in the Bill further details of the circumstances in which DNA profiles and fingerprints may be retained following arrest. In particular, amendment 37 would require material to be retained in all cases of rape and “serious sexual offences”, although that term is not defined. Amendment 38 would also remove from the commissioner any role in deciding what material should be retained, except in cases of national security.

I have dealt with the point about the regime that we wish to adopt. We are working with ACPO on provisions on the ability to take and retain DNA profiles from arrest in situations of vulnerability, as well as the very matters that I have highlighted in connection with the Home Secretary’s comments and how that was intended to be addressed by way of secondary legislation. We believe that that is the appropriate course and that it is right that the commissioner should be involved in retention in such cases. We also believe that clause 3 strikes the right balance between maintaining the effectiveness of the DNA and fingerprint databases, and protecting innocent people.

As in Scotland, in the generality of cases, if there is no conviction, biometric material should be retained for only a limited period when there is sufficient evidence to charge someone with a serious offence. It is right to refine the Scottish model to meet the needs of public protection in England and Wales by providing for retention following arrest in certain limited circumstances. Lowering the bar for retention, as the amendments to clause 3 would do, would fail to strike the right balance. That said, I fully accept the need for clarity about the retention rules in this area, and I note what the hon. Member for Eltham has said. I undertake to reflect carefully on his comments about that specific issue.

Turning to amendment 27, there might be some confusion about clause 8. The provisions reflect those in section 79 of the Criminal Justice and Licensing (Scotland) Act 2010, which permits the retention of DNA from those given what is termed in Scotland a fixed penalty notice, which is the equivalent of a PND—penalty notice for disorder—in England and Wales. It might help the Committee if I explain that a little further.

Contrary to the impression given by the hon. Member for Eltham and the suggestions made by the hon. Member for Gedling during our evidence sessions last week, we are not creating any new powers to take DNA or fingerprints. When someone is given a PND on the street without being arrested, there will be no power to take their biometrics, so there can be no retention. Again, to clarify the matter, we are talking about taking a DNA sample following an arrest, and if a penalty notice for disorder was subsequently issued, the retention period would be two years, which would reflect the situation in Scotland. I hope that the hon. Member Eltham accepts that some of the examples and hypotheses that he highlighted are not the case.

It is important to clarify that a fixed penalty ticket does not constitute a conviction for the purposes of the Bill. The hon. Gentleman referred to two convictions and minor offending provisions in the Bill, and my clear understanding is that they would not be activated because the matter is treated separately.

Clause 8 will operate only when an individual has been arrested and taken into custody. Their biometrics will be taken as part of the normal custody process, and we believe that when someone is given a penalty notice as an alternative to a caution or to being charged, it would be appropriate to retain that individual’s biometrics for a short fixed period. Under the Crime and Security Act 2010, all arrested individuals—whether or not they were subsequently given a penalty notice for disorder—would have had their biometrics retained for six years. It will be interesting to know whether the hon. Gentleman is again changing the Opposition’s position. Is he now saying that that six-year period was wrong in circumstances when a fixed penalty ticket was issued? I certainly thought that he was inferring that that period was in some way inappropriate.

Clive Efford rose—

James Brokenshire (Conservative, Old Bexley and Sidcup)

Perhaps the hon. Gentleman will give us some clarification.

Clive Efford (Labour, Eltham)

It was not us who drafted these provisions. This part of the Bill deals with the retention of DNA, and it is only right and proper that we ask the Government to set out their intentions.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I think I have given such clarification. The fact that the point about perhaps going too far was raised this week and last week implies that the Opposition are changing their approach. Part and parcel of our debates in Committee is hearing how the Opposition telegraph where they stand on certain issues. I know that scrutiny is a key part of what we do in Bill Committees, but the Opposition’s position is also relevant. Perhaps they do not have a position on this issue, but we may gain some clarification during the course of our proceedings.

Finally, let me deal with new clause 1. I remind the Committee that the Counter-Terrorism Act 2008 includes powers to take, use and retain the fingerprints and DNA of individuals subject to control orders. As hon. Members will know, those powers have not been commenced. That was a direct result of the S. and Marper judgment, which necessitated a re-examination of the retention regime under the 2008 Act, in much the same way that we looked at the retention regime under the Police and Criminal Evidence Act 1984.

New clause 1 is essentially an Opposition proposal to reactivate the retention regime under the Crime and Security Act 2010. Although I note that the hon. Gentleman said that this was a probing measure to clarify the Government’s position, we are not minded to accept the new clause for three reasons, the first of which is that given that the power to take fingerprints from controlled individuals has never been commenced, there is no need to have provisions relating to the retention of such material.

Secondly, and more fundamentally, the Government have already announced that they are repealing control orders legislation and replacing it with provisions on terrorism prevention and investigation measures. In the future, there will therefore be no need for provisions relating to the DNA of those subject to control orders. Thirdly, we are unconvinced that, in relation to controlled individuals, as with those arrested under the Police and Criminal Evidence Act, the retention provisions in the 2010 Act, and therefore new clause 1, strike the right balance between maintaining the effectiveness of the DNA and fingerprint databases, and protecting the rights of individuals whose material has been taken.

That said, I can support the underlying thrust of the new clause. We agree that there should be provision for the taking and retention of DNA of individuals subject to terrorism prevention and investigation measures. Consequently, we are finalising our provisions on this point, and we will repeal the uncommenced taking powers in the Counter-Terrorism Act 2008 and make provisions for the taking of fingerprints and non-intimate samples from persons who are subject to terrorism prevention and investigation measures as part of our consideration of the new approach.

With that explanation, I hope that the hon. Gentleman will be minded to withdraw the amendment.

Clive Efford (Labour, Eltham)

The Minister raises a number of points that need further clarification. I was slightly confused by his opening comment about the detail that is retained on the DNA database. I specifically asked the Forensic Science Service whether the police could derive the sort of information to which the Minister referred from that database. The answer that came back was, “No, they can’t.” On further investigation, data and material held by the Forensic Science Service is retained, but I understand that that information is not on the national DNA database. We can clarify that and come back to it later, and perhaps someone will pass the Minister a note.

The Minister also said that the people who gave evidence did not feel that the retention of biometric data—albeit anonymously, if they are removed from the national DNA database—was an issue. However, Dr Wallace from GeneWatch raised the question of trust with regard to organisations that hold such information. There will be an issue about monitoring and regulation of those organisations, particularly if we no longer have a national Forensic Science Service after it is outsourced and privatised. I am sure that people will be concerned about how private companies will organise themselves and retain information. When I asked Dr Metcalfe specifically about the point, he said that there were questions about the retention of details by organisations and information on the searchable national DNA database.

I am still slightly confused about one matter. I am sorry if I have missed something that the Minister said, but I would be grateful if he could clarify the following point. The commissioner for the use and retention of biometric material has been referred to by the Minister in the same terms that the Secretary of State used on Second Reading. We hear that a chief officer will be able to apply to the commissioner to retain DNA in certain circumstances, but we still do not know what they are. I cannot see any reference to that other than that the Secretary of State may prescribe as she sees fit any specific areas that may be included. The Minister alluded to an example where the victim may be a vulnerable individual, but many crimes would fit that description.

The Bill seems to suggest that the primary function of the commissioner concerns national security, yet there is just one reference in clause 3 to the commissioner. It is not clear what other crimes or areas of crime might be considered. I take it that the Government intend to allow the commissioner to oversee the retention of material outside matters of national security, but just how far that will go is still not clear.

We have tabled amendments on penalty notices because clause 8 has been included in the Bill. Penalty notices may be given for something as trivial as littering.

James Brokenshire (Conservative, Old Bexley and Sidcup)

But someone would have to get arrested first.

Clive Efford (Labour, Eltham)

Yes, but it is worth clarifying exactly what we are talking about, because penalty notices can be given to people as young as 10. The retention of biometric details in such cases is allowed under the Bill, so it is worth clarifying where the Government stand on that.

We welcome the comments about control orders. We tabled the new clause to probe the Government’s thinking. They will come back with details about that, and we will have to discuss them when they bring forward their final proposals. Does the Minister wish to make any further comments?

Gary Streeter (Conservative, South West Devon)

Does the Minister wish to respond further?

James Brokenshire (Conservative, Old Bexley and Sidcup)

I was not intending to, Mr Streeter, but I would add for clarification that the DNA database contains a numerical profile, as the hon. Gentleman rightly highlighted, including an XY chromosome indicator—in other words, an indication of male or female. That profile can give information on ethnic traits, for example, although not as explicitly as the genetic sample itself. Such information is not given to the police as part of the initial match report, but it will be as part of the evidence to charge and prosecute, so a distinction may be drawn about when such information is given. We are talking about sensitive information, which is why we are having this debate and people such as the Information Commissioner are involved. That is also why we think that a proportionate regime needs to be introduced.

Clive Efford (Labour, Eltham)

I am grateful to the Minister for clarifying that I was correct that the initial search does not divulge such detail. It may indicate the presence of an XY chromosome because it is a strand that reads different sections of the DNA. I am told that, because there are two numbers in one section, that will indicate that there are two chromosomes—an X and a Y—whereas the alternative would be two Xs. I am grateful that I am correct that the initial search does not show the detail, as some people have claimed. With that, I beg to ask leave to withdraw the amendment.

Clive Efford (Labour, Eltham)

I beg to move amendment 24, in clause 1, page 2, leave out lines 24 to 27 and insert—

‘(6) A speculative search of the DNA database and the national fingerprint database, in relation to section 63D material, must be carried out.

(7) The search must be carried out within such time as may reasonably be required for the search.

(8) In the event of the fingerprint, or DNA profile, being taken from a person in connection with that person’s arrest and the arrest was unlawful or based on mistaken identity, then the sample is exempt from (6) above.’.

Gary Streeter (Conservative, South West Devon)

With this it will be convenient to discuss the following: amendment 25, in clause 13, page 9, line 22, at end insert—

‘(3) Before the DNA profile is destroyed, a speculative search of the DNA database must be carried out.

(4) The search must be carried out within such time as may reasonably be required for the search.

(5) In the event of the fingerprint, or DNA profile, being taken from a person in connection with that person’s arrest and the arrest was unlawful or based on mistaken identity, then the sample is exempt from (3) above.’.

Amendment 26, in clause 14, page 10, leave out lines 8 to 11 and insert—

‘(7) A speculative search of the DNA database and the national fingerprint database, in relation to section 63D material, must be carried out.

(8) The search must be carried out within such time as may reasonably be required for the search.

(9) In the event of the fingerprint, or DNA profile, being taken from a person in connection with that person’s arrest and the arrest was unlawful or based on mistaken identity, then the sample is exempt from (7) above.’.

Clive Efford (Labour, Eltham)

The amendments relate to the need for a speculative search to be carried out when somebody is arrested. We tabled the amendment because the view of Chris Sims from the Association of Chief Police Officers is that everyone arrested should have a speculative search carried out. However, I cannot see that requirement anywhere. I can understand why it is ACPO’s wish that everyone who is arrested should have that initial speculative search carried out against the national DNA database. Time will move on and if it is not a requirement, resources will be tight, and the police will have to make cuts and economies. The concern is that we could slip into a practice whereby chief officers make their own decisions locally. They may decide that it is not worth the trouble of undertaking a DNA search for somebody who is held for a minor offence overnight and is perhaps in a cell for being drunk and disorderly in a public place, but has not been charged. However, we know from past experience that taking DNA in those circumstances has led to the DNA database showing up a match. One big example of exactly that is Mark Dixie in the Sally Anne Bowman case.

I know that it is not the intention to stop speculative searches now, and that it would not be the intention of the Government or ACPO, but we are considering the Bill’s being in force for several years and being the framework within which the police operate. It is not unreasonable to suggest that practices could change in future. I would be grateful for the Minister’s comments on that. A speculative search of people who are arrested should be carried out and I would be grateful for the Minister’s reassurance that there will be no opportunity for the police to decide in future that, in some cases, we should not be doing that.

Nicola Blackwood (Conservative, Oxford West and Abingdon)

How do the hon. Gentleman’s amendments sit with the well-established concept of operational independence, as set out by Denning in the original case of Blackburn?

Clive Efford (Labour, Eltham)

There are many areas in which we regulate for the police to act and for which we set the framework. We would not direct them operationally on how to police their local areas. It would be a framework within which they had to act, and we believe that a speculative search should be carried out in all cases. I suspect that the police will want to do it, but other pressures may apply that require them to consider how their resources are used and whether it can be done in every case. I stress that we are discussing whether it is carried out in every case, and whether the Government intend to ensure that the police do so.

Subsection (5) deals with “a speculative search” in relation to those who have been arrested as a result of mistaken identity or have had their samples obtained illegally. I suggest that that is inconsistent with the thrust of the Government’s approach. Those people must be the innocent of the innocent, who find themselves in a police station. It is a “while you’re here” provision, suggesting that someone who has been arrested as a result of mistaken identity or whose DNA has obtained illegally should have a DNA search run against them.

Our witnesses went much further. We heard that records of people arrested in such circumstances should not be kept, and that the arrest of those who are innocent, whether or not they are charged or cautioned, should not be retained on the police database. Some are concerned that the civil liberties aspects go beyond anything that the Committee would support. I wonder what approach the Minister believes should be taken to those who find themselves in such circumstances who are totally innocent. Should a speculative search be undertaken? Should the police go on a fishing exercise in such circumstances?

Gareth Johnson (Conservative, Dartford)

The amendment is unclear about who should decide whether there is mistaken identity. Many of those who are arrested obviously say, “It wasn’t me. You’ve got the wrong person.” It puts an awful lot of pressure on the police to ask an officer to say that it is a case of mistaken identity. An inspector may not be able to make that judgment. It is simply not clear from the amendment who would have to make that judgment.

Clive Efford (Labour, Eltham)

In the course of dispensing with a case, the police will presumably reach a conclusion about whether the person is the one they intended to arrest or whether the DNA was obtained through an improper process. That will be for the police themselves to determine, as it is the police who will initiate the search.

Steven Baker (Conservative, Wycombe)

Listening to the hon. Gentleman, and comparing the amendment with the original text, it is not clear why he wants to make the marginal change between:

“Nothing in this section prevents a speculative search”

and mandating a speculative search in all cases. He said that he knows that the police want to secure convictions—that is the implication that I draw from his remarks—so why does he want to compel them?

Clive Efford (Labour, Eltham)

We think it is necessary, and so does ACPO, that all who are arrested should have a speculative search. That does not mean that the data would be retained. If someone is innocent or not charged or cautioned, and it is not a proscribed activity, of which we are awaiting the details, the data would not be retained. We are talking about a one-off speculative search of the database. The legislation does not set out that it should be a matter of course and should be carried out. We are questioning whether it should be in the Bill, so that there is no potential in future for local chief officers with budget pressures to decide that they will not carry out a forensic search of the DNA database each time someone is arrested. We tabled the amendment to find out the Government’s view on that.

We know from Second Reading that the Lib Dems see this as the first step towards a second freedoms Bill reducing the power of the state in many ways. We heard evidence from the Information Commissioner, Liberty and Justice that they do not believe that it is right to undertake speculative searches of innocent people. We may or may not agree with that, but we are talking about people who must be the most innocent: they have been brought to the police station by mistake and their samples have been obtained illegally.

Does the Minister believe that speculative searches of people arrested in such circumstances should be carried out? That seems to be inconsistent with the Bill’s approach. We heard from Information Commissioner, Liberty and Justice that not only should such things not happen, but records of arrest should be removed, as I have said. Does the Minister believe that that approach would be consistent with the Bill? Is there any prospect of the Government, in a future freedoms Bill or even in an amendment to this measure, pursuing a further erosion of information held by the police, including even removing information about people who are arrested and not charged or cautioned?

Does the Minister believe that it is right to perform a speculative search of people who have done nothing wrong? We are talking about victims of mistaken identity or procedural irregularities, which result in personal details being taken and someone being subject to a speculative search. Does the Minister agree that that is inconsistent with the Government’s approach to the Bill?

James Brokenshire (Conservative, Old Bexley and Sidcup)

As the hon. Gentleman indicated, the amendments would place a duty on the police to carry out speculative searches of the national fingerprint and DNA databases in all cases before material is destroyed, except when the arrest is unlawful or based on mistaken identity. That contrasts with the position in the Bill, whereby the police have general discretion to search but can choose not to do so if they do not consider such a search desirable.

Although I note the hon. Gentleman’s point about the importance of speculative searches, and we very much agree that a speculative search against the cold case database can result in detections, it is worth highlighting the distinction between the legal and practical. In practice, there is not much, if anything, between the mandatory model and the model in the Bill, because the process for conducting speculative searches against the DNA and fingerprint databases is wholly automated. Once a new DNA profile or set of fingerprints is loaded on to the database, it is subject to speculative searches. As I said, in practice, there is not much between us on this, because it happens as a consequence of automatic loading.

Steven Baker (Conservative, Wycombe)

The hon. Member for Eltham mentioned the cost of searches and the pressure on police budgets. I infer from the Minister’s remarks that there actually would not be a cost associated with speculative searches. Can he confirm what I infer?

James Brokenshire (Conservative, Old Bexley and Sidcup)

My hon. Friend’s question highlights several interesting points that have been made by the hon. Member for Eltham. I am still not sure what the Opposition position is on a number of points. Is this another change in the position that was adopted by the previous Government? My understanding of section 5 of the Crime and Security Act 2010 was that fingerprints and samples could be checked in such circumstances, so I do not know whether there has been some movement in their position. It will be interesting to see whether that is the case, or whether this is simply a probing amendment, as the hon. Member for Eltham said, and the Opposition have not actually moved their position at all. It will be interesting to discern that as we progress further with the Bill. Perhaps the hon. Gentleman will be able to tell us when he closes our mini-debate on this group of amendments.

To return to the substantive point, I share the hon. Gentleman’s view about conducting speculative searches. That is why the Bill, in providing for them, refines the Scottish model. Practically, there is not much difference between us on the principle, albeit we believe that the wording in the Bill is appropriate to deal with the matter.

On the issue of the person who may be subjected to unlawful arrest or arrest based on mistaken identity, obviously, as the hon. Gentleman will know from new section 63D(2), the Bill specifically addresses retention and takes account of concern that there should not be ongoing retention. The subsection states that the DNA profile must be destroyed if it appears to the responsible chief officer of police that some of the very circumstances that the hon. Gentleman alluded to may arise. It is important that that is expressed in the Bill in this way.

There is no question of retaining material in the circumstances set out in new section 63D(2). However, there is obviously allowance for a speculative search if an arrest takes place, but the question I would put to the hon. Gentleman is about timing and the complexity that may arise. It may come to light only subsequently—when the case actually gets to court—that an arrest was wrongful. That is often where the evidence is challenged and some of these issues arise.

The timing issues that the hon. Gentleman is talking about, and the factors that he seeks to protect following an arrest, will come further down the track, well after the arrest, well after the loading and creation of a profile, and well after a speculative search. The key thing is that there should be no retention in such circumstances, which is precisely why we have made provision in clause 1 to cover them. For the reasons that I have given, I hope that the hon. Gentleman will be minded to withdraw the amendment.

Clive Efford (Labour, Eltham)

I am grateful to the Minister. The amendment on speculative searches of people who have been arrested because of mistaken identity or have had their DNA taken for a process that is not lawful was intended to highlight the difference of opinion that may exist among the coalition. Among Liberal Democrat MPs, the position is clearly that there is a need for a further freedom Bill—a need to go further; and the suggestion from many of our witnesses was that some of the clauses in the Bill did not go far enough. A great deal of the rhetoric about the Bill, particularly from the Deputy Prime Minister in the lead-up to its publication, suggested that it would involve root-and-branch change, but the provisions relating to people who are innocent seem to be inconsistent with that.

However, I take on board the points about practicality. I wanted to tease out the point that there are some inconsistencies in the Bill. Rather than being a great revising Bill, which contains new rules and tears up existing rules, it is an amending Bill; almost every set of clauses amends something that already exists.

James Brokenshire (Conservative, Old Bexley and Sidcup)

But would the hon. Gentleman accept that a person would have their DNA retained indefinitely under the regime created by the Labour Government or, potentially, for six years under arrangements that he might previously have proffered?

Clive Efford (Labour, Eltham)

That may be true, but I am not the one who has been promoting the Bill as a huge step forward for freedom and liberty. The way the coalition has talked up and talked about the Bill suggests that it is some sort of great root-and-branch ripping up of all the “rotten” laws passed by the previous Government, but it is nothing of the sort; it is a tinkering Bill, with a bit shifted here, a bit shifted there and a bit chopped off somewhere else. That is really what we have.

On speculative searches, I am sure we are on the same ground. Such searches have been important in detecting serious crime, and I hope the Minister will take that on board. However, there is one thing we do not want the police to do, and my concern is that nothing in the Bill protects us from it. The hon. Member for Wycombe intervened on the Minister to suggest that no cost is involved, but there is. The police must pay the Forensic Science Service for the service it provides, and they might be looking for economies in the future; it is not impossible to envisage. That is the concern that we are highlighting, and we would like reassurance from the Government that we could not slip into a situation where chief officers take such decisions at local level.

That said, unless the Minister wants to respond, I beg to ask leave to withdraw the amendment.

Clive Efford (Labour, Eltham)

I will not detain the Committee long. We have had quite a long debate on clause 1. It raises issues about how we deal with information and particularly how we describe it. The way information is described and reported actually influences how people think about it. At the end of our exchanges, it was clear that what is provided by the national DNA database is a string of numbers. Initially, all the police get is an indication of whether there has been a match on the database when a check has been run overnight. Further inquiry leads to their finding more information.

It is important that we understand those things in the terminology we use. Bodies such as Liberty say that the police have almost routine access to personal information. That is incorrect, but such comments have influenced the debate. The concern is that such discourse may lead people to feel that the provisions are more intrusive of people’s private lives than they actually are, that information is freely bandied around in police stations, which it is not, and that people need more protection from the way information is used, which is simply not the case. The Minister shakes his head, but we have heard such comments from people who we expect would know more about how such information is handled and who has access to it. That has influenced how people have approached the issue. Information is an important tool for the police in the detection of crime.

If the Bill becomes an Act, many people who have had their DNA retained for up to six years will not be on the database and may go on to commit very serious crimes. We are denying ourselves the opportunity to assess the effect of the removal of profiles from the DNA database.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I just want to check: from the hon. Gentleman’s comments in relation to risk, it seems as if he is going beyond six years. I know that the previous Home Secretary, Jacqui Smith, wanted a 12-year retention period. I do not know whether some change has taken place.

Clive Efford (Labour, Eltham)

We are dealing with the situation that has existed since the Crime and Security Act 2010 and the proposals before us. The evidence presented when we were in government just over a year ago clearly set out the case for a retention period of six years. As I have pointed out, the Home Affairs Committee’s conclusion was that there should be a minimum of three years. If the Minister checks the wording of its report, it says “at least” three years; it does not actually recommend three years.

The clause sets out how DNA will be removed from the database, and the title of the clause suggests that it is about the destruction of DNA profiles. As I highlighted earlier, that gives the impression that we are talking about people’s physical details being retained for the purposes of DNA, and that is simply not the case. That is why we tabled an amendment to highlight one of the problems with the way in which the matter has been debated. People’s DNA profiles are a very emotive issue; people are quite rightly sensitive about it. At times, it has led to comment and assumptions about what details are available and what information people have access to that are not entirely accurate. That has led people to support positions on altering the retention of DNA profiles that we may live to regret, in many instances. I would be interested to hear the Minister’s comments.

John Robertson (Labour, Glasgow North West)

I want to ask the Minister a couple of questions. My hon. Friend the Member for Eltham has mentioned cost. I have concerns about the added cost that there may be for our police services as a result of changing the rules. The previous Act, which should have been brought in by now, is not there. It is causing complications; the new Act will come on top of an old Act that was not even implemented.

May I ask the Minister to comment on the Scottish angle of his investigations into the Bill? I have concerns about the information that he has been getting and how it is being interpreted. I look forward to his answers. May I say, as someone who was not exactly in favour of the previous amendment on DNA, that I have absolutely no problem with a DNA database being kept for ever on every single person in this country? I can see good reasons for having that; I want to put that on the record.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I am grateful to the hon. Gentleman for his comments, which contrast markedly with the rhetoric of his leader, who takes a very different-seeming stance on civil liberties issues, but no doubt we will return to that in a different way. I acknowledge the purity of the hon. Gentleman’s logic in wanting to keep everybody’s DNA on the national DNA database for ever and a day. It may be worth his talking to the hon. Member for Gedling, who I know is on record saying that that would be disproportionate. There is clearly an understandable difference in view, but the hon. Member for Glasgow North West makes a fair point; however, I agree with the hon. Member for Gedling that that would be disproportionate and not appropriate.

The hon. Member for Glasgow North West will have seen the regulatory impact assessment and the costs suggested in that. We have been working hard with the police service and ACPO to reduce the costs of implementing the proposals. In the previous Government’s Crime and Security Act 2010, implementing that proposal had a one-off initial cost of £50 million, as is stated in the regulatory impact assessment. I assure the hon. Gentleman that we have been working hard to make important changes and savings in the proposed regime, which will make it more cost-effective than the regime under the 2010 Act.

Clive Efford (Labour, Eltham)

First, at no stage did I say that everyone’s DNA should be on a DNA database; let us get that on the record. There is a point about future costs and how DNA will be processed. Do the Government intend to continue processing in batches, so that information is retained, albeit anonymously, by Forensic Science Service providers? If so, how will that be regulated? People have concerns about that.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I was actually referring to the comments of the hon. Member for Glasgow North West. I would not wish to impute any such comments to the hon. Member for Eltham, given what he may say during the rest of the Committee. Using batches and the magic number 82, which we discussed in the previous debate, is a practical and cost-effective way for Forensic Science Service providers to process the DNA and derive a profile that can be loaded on to the national DNA database. The key point is the destruction of the DNA sample provided following the creation of that profile. Even if samples are processed in batches of 82, they will be destroyed at the end, and if the conditions in the Bill are not satisfied, the profile derived from the sample will be destroyed. The hon. Member for Eltham has focused on the processing aspect, but as I said earlier, GeneWatch clearly indicated that it felt that to be a bit of a red herring. Regulation also comes from the forensics regulator.

It has been interesting to listen to some of the debate on this issue. The hon. Gentleman seems keen to downplay the sensitivity of the information retained on the national DNA database, even if there are familial or ethnic traits or other information that can be derived from it. I am a little surprised that he appears to make that case, despite the information provided by the Information Commissioner, who clearly has concerns about the sensitivity of the information, hence the points that he has consistently made about the situation.

The hon. Member for Glasgow North West raised issues about the position in Scotland; it may be appropriate to have a longer debate about that, about three years versus six years, and about the Scottish model. Clause 1 makes important changes and telegraphs very clearly that there will be a proportionate regime for the retention of DNA material, and we therefore seek its inclusion in the Bill.

Clause 2

Clive Efford (Labour, Eltham)

This clause refers to proceedings that may follow an investigation. In his evidence, the Information Commissioner raised concerns about the retention of data in unresolved cases. When the Minister responds, can he say what will happen to data where a case is not resolved but an individual who has been investigated or arrested in relation to that investigation is no longer a suspect? How will those data be treated? Will they be kept until the end of the inquiry? Will they be destroyed as soon as the profile is made? Will the profile be retained? This issue concerns both samples and the profile, because if an investigation is ongoing, there may be a need to retain samples. Should the profile on the database also be retained? What will happen to an individual in those circumstances?

We touched on the issue of appeals earlier, in relation to amendment 15. Of course, appeals are potentially ongoing proceedings, following an investigation. As I mentioned earlier, the Forensic Science Service told me that it is frequently asked for information on re-testing and samples by defence counsel. I appreciate that there is a difference between samples from a crime scene and samples taken from an individual. I asked about that when I visited the forensic science people; they said that there is bound to be a cost involved if samples are disposed of and then re-testing needs to be carried out. They suggested that there are many situations where re-testing is requested. I accept that some of those situations may involve re-testing of crime scene samples, but there are also personal samples taken at the time of arrest.

Where the Government are attempting to reduce the data held on individuals to protect civil liberties, it would be perverse if the rights of individuals seeking justice through the courts were denied in any way, and if the unavailability of information interfered in some way with a court process. Could the Minister say whether the Government have given any consideration to that? I know he has already indicated that it is possible to re-test, but if there are a lot of cases where that happens, there is a further cost involved. Although it is desirable to dispose of the personal data, there is a large number of personal samples still being held that will need to be disposed of; again, that will be an enormous cost, as the Minister knows. There will also be instances where samples may need to be retained. In every circumstance, once the profile is obtained and six months have elapsed, should all the samples be destroyed? Is there any scope for considering retaining samples in certain circumstances?

I think the Minister has already answered this question, but for clarification, when the Bill refers to personal samples being destroyed, does it refer specifically to personal samples taken at the time of arrest, and not to samples gathered as evidence or at crime scenes? I would welcome the Minister’s comments.

James Brokenshire (Conservative, Old Bexley and Sidcup)

On that last point, I think that the hon. Gentleman has correctly reflected the position that I have stated. His point about re-testing samples is interesting. If he is hearing that further re-testing is required or a further sample will be needed, that is in a situation where those samples are already retained. If he is suggesting that issues exist even where we have a physical sample, the retention of that original sample does not seem to be the relevant factor here. Perhaps I have misunderstood him.

Clive Efford (Labour, Eltham)

I genuinely apologise if I have misled the Minister. I am saying that there are requests for the samples that are held currently. The concern is that if they are destroyed in future and proceedings follow on from an investigation, or even from a conviction, re-testing could be costly and time-consuming.

James Brokenshire (Conservative, Old Bexley and Sidcup)

That is why I think that the hon. Gentleman’s final point, on personal samples taken following an arrest to get a DNA profile, is the relevant one. I suspect that he may be flagging up the issue of retention of other crime scene information and evidence, which may be subject to further investigation and examination so that the facts of a case, and whether an appeal is appropriate, can be determined.

Turning to the broader point at issue in clause 2, it might assist the Committee if I explain in a little more detail what we mean by the “conclusion of the investigation” or the “conclusion of those proceedings”. The hon. Gentleman is correct that that question was raised by the Information Commissioner in his written evidence to the Committee. If a person is arrested for an offence but is not charged with it, for the purposes of this clause the investigation is concluded when the person from whom the material was taken is no longer suspected of having committed that offence. That might be, for example, when another person has been arrested, or once an alibi has been checked out.

The question of whether a person remains under investigation will turn on the facts of a particular case, however. In many cases, it will be possible to determine rapidly whether a person committed a particular offence, but there will be exceptional cases in which a person remains under suspicion for some time, so the issue will be determined on a case-by-case basis. DNA evidence may well be crucial in such cases, so we would be faced with a choice of either retaining the DNA profile for the duration of the investigation, or taking a fresh sample some time later when it becomes apparent that further DNA analysis is required. The law at present would not permit the taking of a second sample in such rare cases, and in any event we consider that it is less intrusive to retain the original DNA profile and fingerprints than to take fresh ones some months later. The issue hinges on my explanation of the intention behind clause 2; material may be retained while investigations are ongoing.

Where a person is arrested for an offence and subsequently charged, the legal proceedings are concluded when the charges are dropped, when the person is acquitted of the offence or, if they are found guilty, when they are acquitted on appeal. I hope that that clarifies the situation that will arise once the charging decision has been made.

Once the investigation or court proceedings are complete, clause 1 will require the materials to be deleted unless other provisions in the Bill permit its retention, for example if a conviction already existed—that is, if someone had already been convicted of a crime and the DNA profile was taken in relation to a subsequent investigation. With that explanation, I hope that the hon. Gentleman will recognise that the provision is important and will be minded to accept its retention in the Bill.

Clause 3

Clive Efford (Labour, Eltham)

I beg to move amendment 19, in clause 3, page 3, line 30, leave out ‘3’ and insert ‘6’.

Gary Streeter (Conservative, South West Devon)

With this it will be convenient to discuss the following: amendment 20, in clause 3, page 3, line 32, leave out ‘3’ and insert ‘6’.

Amendment 22, in clause 4, page 5, line 19, at end insert ‘Otherwise the retention period is 6 years.’.

Amendment 23, in clause 4, page 5, line 21, at end add—

‘(4) If the person was under the age of 18 at the time of the offence the retention period is 3 years.’.

Amendment 36, in clause 9, page 7, line 39, after ‘retained’, insert ‘for an initial period of six years, then’.

Amendment 32, in clause 25, page 16, line 12, leave out ‘3’ and insert ‘6’.

Amendment 33, in clause 25, page 16, line 22, leave out ‘3’ and insert ‘6’.

Amendment 34, in clause 25, page 16, line 25, after ‘derived’, insert ‘6 years or more’.

Amendment 35, in clause 25, page 16, line 30, at end insert—

‘(d) in the case of material taken or derived less than six years before the commencement day from a person who—

(i) was arrested for, or charged with, the offence and

(ii) has not been convicted of the offence,

the destruction of the material at the end of the period of six years beginning with the day on which the material was taken or derived.’.

Clive Efford (Labour, Eltham)

The amendments are concerned with what is probably the meat of the difference between us and the Government—the length of time for which DNA should be retained, centring around three years or six years.

We have already referred to the Select Committee, which looked into the issue and recommended a minimum of three years. Its report included the graph to which the Minister referred. The provisions in the Bill are based on the Scottish proposal, but when the Scottish Parliament passed the proposal, which came into force in 2007, it was not in possession of any empirical evidence to suggest that three years was the right length of time. We seem to have settled on supporting the three years adopted by Scotland, although that was done when there was no detailed research into the length of the retention time.

ACPO said in its evidence that there was no evidence base for three years and that it felt that six years was supported. During the Select Committee’s consideration of data retention, the Home Office wrote to it with research into people who had been arrested. Taking people who had been arrested as a separate group, the evidence suggested that, in the six-year period after arrest, there was a higher propensity to be re-arrested among the group than among the general public. Therefore, the six-year period, which was passed in the Crime and Security Act 2010, was recommended.

When that Act was passed, it was accepted that there might be an argument for three years. The then Ministers—I have discussed this with one of them—proposed that the approach should be to adopt the six-year proposal and then ensure that the DNA strategy board carried out a detailed analysis of how useful information retained for more than three years, up to six years, had been in the detection of crime.

The Home Office pointed out that the research, undertaken by Professor Fraser, did not assess whether any alternative would be effective, nor could it determine how many serious crimes went undetected, as the relevant profiles had been deleted, so they were not there to assess whether they would have been of use. That is a problem with what the Bill is doing.

If we adopted a six-year proposal, it would be quite feasible for the Government to come back in several years and say that they had done a detailed analysis of the retention of DNA for the six-year period and discovered that there was no benefit to retaining DNA beyond three years. The problem with the Government’s approach is that that analysis is not possible. All the relevant information needed to assess whether the retention of DNA for more than three years and up to six is a useful tool in the detection and prevention of crime will be deleted under the Bill.

If, in future, there are some serious cases in which it was found that the provisions had allowed for the deletion of DNA belonging to people who would otherwise have been detected early and prevented from carrying out a serious crime, we could be back here reconsidering the length of time for which DNA is retained. The sensible approach, given our position and accepting that there has to be change, would be to adopt the six-year period, carry out a detailed review, independently of Government, and base future decisions on empirical evidence. Once that information has gone, there is no going back. It has disappeared for ever, and we could be back considering the matter again and regretting our actions.

Amendment 23 reintroduces proposals in the Crime and Security Act 2010, to which the Minister referred earlier, that relate to the retention period of three years for people who are under 18. The other amendments relate to clause 25 and the destruction of materials that we currently hold. My point on that is similar to the one that I have just made. Under the regime set out in the Bill, if we delete DNA that is currently retained but has been held for more than three years, that removes the opportunity for us to adopt an evidence-based approach to the use of that DNA material. The sensible approach must be for the six-year rule to be applied and to carry out that detailed research. After all, ACPO is in favour of retaining the six-year period, and is asking us to retain it. It feels that the evidence supports the retention period of six years and indicated, in the evidence session, that it felt that approximately 1,000 cases would go undetected as a result of the changes proposed in the Bill. We need to bear in mind the sorts of cases in which the DNA database has been used for detection. For example, Abdul Azad had a DNA sample taken for a minor offence. He went on to rape someone five months later. His DNA would not have been retained under the proposed regime.

Michael Ellis (Conservative, Northampton North)

Does the hon. Gentleman recall the evidence of GeneWatch UK? If I recall correctly, it was under the impression that, if anything, one or two might be missed by this. Is not the logical extension of the hon. Gentleman’s argument that, in the absence of doing what the hon. Member for Glasgow North West wants to do, which is to take everyone’s DNA—I do not know whether that would be done at birth or at another time—we are missing millions of criminal offences?

Clive Efford (Labour, Eltham)

Our discussion about the length of time for which material is retained is about balance. It is about whether we believe that a six-year or a three-year retention period is reasonable and what evidence there is to support whichever position we take. I am willing to concede that a six-year period may in the long run not be necessary. It may not add much to the ability of the police to detect and prevent crime. What I am suggesting is that we need an evidence-based approach, and that the only way we can achieve that is by using the data we have and have retained for six years—

Rehman Chishti (Gillingham and Rainham) (Con) rose—

Clive Efford (Labour, Eltham)

Let me just finish the point. The only way in which we can achieve that is by using the data that we have and have retained for six years, and by determining whether that is assisting the police or not. We can then come back to the issue, having proved beyond any shadow of a doubt that we are not damaging the police’s ability in any way to detect and prevent crime by reducing the period to three years. I make the point again that when the system was introduced in Scotland, there was no evidence base for choosing three years.

Rehman Chishti (Conservative, Gillingham and Rainham)

The hon. Gentleman talks about an evidence-based system, but according to ACPO, when people are looking at evidence, they are looking, in addition to DNA, at corroborative evidence and circumstantial evidence. DNA evidence by itself, if there is a partial DNA match, cannot lead to a conviction.

Clive Efford (Labour, Eltham)

I think that it was in answer to a question from the hon. Gentleman that ACPO made that point, which is absolutely right. ACPO makes the point that often, DNA is not the silver bullet that solves the crime, but it is the one that puts the person in the location and allows the police to focus their investigations. I think that is the point ACPO made in its response—that DNA is an extremely useful tool in the detection of crime.

I believe that if we are to move ahead on the basis of what the Government have proposed, we must satisfy ourselves that there is an evidence base for it, and at the moment that evidence does not exist. Professor Fraser, who carried out the review after the three-year period was introduced in Scotland, was not able to prove categorically that there was no effect in accepting a three-year instead of a six-year period. There was no comparison with other regimes. Therefore, there is a duty on us to carry out that review before we do something that we may well regret in the future.

We heard the reference from ACPO, in answer to the point made by the hon. Member for Gillingham and Rainham, to 1,000 crimes. Unfortunately, I could not be present for Dr Wallace’s evidence, but I did read it, and it was difficult to work out how she came to the conclusion that it involved just two cases. We have more than two cases from the Forensic Science Service showing that the current regime would have allowed quite serious crimes.

We return to the point about balance. That relates in this case to whether three years or six years is an infringement of someone’s civil liberties, balanced against the seriousness of some of the crimes that DNA is used to detect. That is the issue we must confront on this set of clauses.

Rehman Chishti (Conservative, Gillingham and Rainham)

On serious, violent sexual crimes, will the hon. Gentleman acknowledge that ACPO accepted that the issue was not DNA, except in cases of stranger rape, because there is the other issue of consent? In addition, ACPO was not able to clarify or confirm which category of seriousness the 1,000 offences to which he refers came under.

Clive Efford (Labour, Eltham)

I am not a lawyer, as I made clear earlier, but I am not sure whether DNA is required to place someone at the scene of a crime when consent is an issue. Presumably, if people are known to one another, consent exists. [ Interruption. ] Presumably, there is no dispute that there was sexual intercourse.

Michael Ellis rose—

Rehman Chishti (Conservative, Gillingham and Rainham)

The issue would relate to the DNA link. However, in a lot of rape cases it is not about DNA, it is about consent between parties. That is the key difference.

Clive Efford (Labour, Eltham)

Yes. I am sorry if I am not following the hon. Gentleman, but he said “consent.” Presumably, the person is known to the individual if there is consent, and there is no dispute that it took place.

Rehman Chishti (Conservative, Gillingham and Rainham)

I am so sorry—it is probably the way I put the question. DNA is needed to capture violent sexual offences in cases of stranger rape, and a lot of the sexual rape cases that we have in this country are not stranger rapes. The main sexual rape cases occur between parties who know one another, and DNA would be irrelevant in such cases.

Clive Efford (Labour, Eltham)

Yes, but I have to say that I am a bit bemused. It seems strange to say that because there are fewer stranger rape cases, we should not concern ourselves with whether DNA is an important tool in detecting them.

Rehman Chishti (Conservative, Gillingham and Rainham)

I am not saying that we should take those cases less seriously, but that we should look at the proportionate use of DNA when talking about sexual rape cases. Of course DNA is relevant in stranger rape cases, but in overall rape cases the issue is consent, rather than DNA. I accept that one has to take every rape case seriously and do all one can to bring the offender to account.

Clive Efford (Labour, Eltham)

I accept the point the hon. Gentleman is making, to a degree. However, the point I was trying to make is that there are cases where the use of DNA taken from people who have been arrested for minor crimes in the past, and which is on the database, has led to such people being identified as the perpetrators of serious, violent sexual crimes. This takes us back to the issue of balance: where do we draw the line? We accept that the European Court of Human Rights has determined that we cannot indiscriminately retain people’s DNA just because they walked under a blue lamp outside a police station. That has to come to an end. Everyone accepts that.

We came to a conclusion, under the 2010 Act, that the proportionate way to deal with that was a retention period of six years. ACPO and the Home Office have produced evidence suggesting that people who have been arrested have a higher propensity to be re-arrested than other members of the public, and that that propensity exists within the first six years after the first arrest. They conclude, therefore, that six years is a proportionate time for the DNA to be retained.

This Committee is being asked to agree to a clause that will approve a retention period of three years. The Select Committee looked at the issue—I know the Minister will quote that Committee—and concluded that it should be a minimum of three years. It did not recommend specifically three years.

James Brokenshire (Conservative, Old Bexley and Sidcup)

It might help if I read this quote from the conclusion of the Select Committee report:

“We are not convinced that retaining for six years the DNA profiles of people not convicted of any crime would result in more cases being cleared up—let alone more convictions obtained—than retaining them for three years. We therefore recommend a three year limit, and a draft amendment to the Crime and Security Bill to this effect is in the Annex to this Report.”

Does the hon. Gentleman recognise that statement?

Clive Efford (Labour, Eltham)

It was not in the section that I read, obviously, but if I have been corrected, I stand corrected. The evidence, however, is not yet there to support a period of three years as opposed to six, which is the thrust of my argument. The position adopted by the Government when the 2010 Act was passed was that the six-year period should remain under review until such time as empirical evidence could be obtained to determine whether the six-year period was correct, or if it could be reduced still further. It could have been five years, or four, or three, as a result of that evidence. We are having this argument about three or six years merely because the Scottish Parliament adopted the three-year period, and subsequent reports suggested that that was right. As I have said, however, Professor Fraser’s report was not conclusive in deciding between three and six years, so the Home Office, which carried out its own research, and ACPO, which did the same, decided that the six-year period was appropriate.

John Robertson rose—

James Brokenshire rose—

Clive Efford (Labour, Eltham)

I give way to the Minister.

James Brokenshire (Conservative, Old Bexley and Sidcup)

Is the hon. Gentleman aware that, according to evidence given in the run-up to the 2010 Act, ACPO was after a different period altogether? He is trying to suggest that six years is where it ended up, but ACPO had made it very clear that it was for Parliament to decide.

Clive Efford (Labour, Eltham)

It certainly is for Parliament to decide, but before Parliament comes to a conclusion, my argument is that it should have all the evidence before it. There is the opportunity to prove beyond any shadow of doubt that a retention period of six years is wrong, but there is also the opportunity to prove that it is right. Taking the precipitate action, however, of removing all that data and fixing a period of three years at this time denies Parliament that opportunity, and it may result in serious crimes. Although they may be small in number, as has been mentioned, such crimes are very serious. They have a huge effect on the lives of individuals, and they would go undetected or would not be prevented because of the changes that will be introduced.

John Robertson (Labour, Glasgow North West)

ACPO referred to 1,000 cases, but we did not hear what kind of cases they were. If they were longer than three years and heading towards six, they must have been very serious cases. Does my hon. Friend agree that the Government are rushing quickly into this without taking the necessary evidence that would ensure that they get the period right?

Clive Efford (Labour, Eltham)

I agree with my hon. Friend. Mr Sims of ACPO, who gave evidence to the Committee, is an extraordinarily impressive individual. If ACPO says it has concerns, we have a duty to listen. I am not suggesting for one minute that six years is absolutely right. I accept that there is a debate to be had, but the thrust of my argument is that it should be based on a detailed, thorough investigation of the procedures laid out in the 2010 Act. That has not happened, and we are denying ourselves the opportunity to do that by taking the step of imposing three years. In fact, we will never know, because information will be destroyed as a consequence of the Bill and it will not be there to carry out that assessment. I suggest to hon. Members that there will be a future occasion when people will be angry because of an occurrence resulting from the changes being imposed. Those changes should be based on evidence, but not the evidence before us.

Martin Caton (Labour, Gower)

Before we continue our line-by-line consideration of the Bill, I understand that the Minister would like to amend the programme order to change the Committee’s sitting times next Tuesday.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I beg to move,

That if, on Tuesday 5 April, references to specific times in the Standing Orders of this House shall apply as if that day were a Wednesday, the Order of the Committee of 22 March shall be amended as follows—in paragraph (l)(d) leave out ‘10.30 am and 4.00 pm’ and insert ‘9.00 am and 1.30 pm’.

As Members are aware, next Tuesday is the final day for the House’s deliberations before the Easter recess. I understand that there is a motion on the Order Paper that will mean that the sitting hours next Tuesday may be slightly different. I therefore seek an amendment to reflect that if that motion is passed; in other words, this is a contingent motion. I hope that our proposed amendment is clear. As I said, it is contingent on the relevant motion being passed on the Floor of the House. If it is not, the hours would remain the same.

Martin Caton (Labour, Gower)

I remind the Committee that with this we are discussing the following: amendment 20, in clause 3, page 3, line 32, leave out ‘3’ and insert ‘6’.

Amendment 22, in clause 4, page 5, line 19, at end insert ‘Otherwise the retention period is 6 years.’.

Amendment 23, in clause 4, page 5, line 21, at end add—

‘(4) If the person was under the age of 18 at the time of the offence the retention period is 3 years.’.

Amendment 36, in clause 9, page 7, line 39, after ‘retained’, insert ‘for an initial period of six years, then’.

Amendment 32, in clause 25, page 16, line 12, leave out ‘3’ and insert ‘6’.

Amendment 33, in clause 25, page 16, line 22, leave out ‘3’ and insert ‘6’.

Amendment 34, in clause 25, page 16, line 25, after ‘derived’, insert ‘6 years or more’.

Amendment 35, in clause 25, page 16, line 30, at end insert—

‘(d) in the case of material taken or derived less than six years before the commencement day from a person who—

(i) was arrested for, or charged with, the offence and

(ii) has not been convicted of the offence,

the destruction of the material at the end of the period of six years beginning with the day on which the material was taken or derived.’.

John Robertson (Labour, Glasgow North West)

I am looking for clarification on the clause and answers to the questions that I asked earlier. Some points were made to me about why DNA should not be as important as I deem it to be. DNA can be useful in many cases. As a supporter of identity cards, I thought that that would be another area where it was going to be used. Alas, that was another Bill that I supported that has bitten the dust, but there we go. Having said that, it is important for some Government Members to remember that not everyone agrees with them. Some of us Opposition Members probably think that we should not agree with them, but we are entitled to our opinion, just as Government Members are entitled to theirs. As much as I honour their opinion, I expect them to do the same to mine. Just because they disagree with me does not mean that I am wrong; just that they think I am wrong. In my case, I know that I am right, but there we go. I made that point for Government Members; perhaps I will remember that when I am asking questions. I am not doing it just to be awkward, but because I want to know the answers.

We talked about the law. Of course the law in Scotland is slightly different from the law in England. Scottish law is made not so much on an evidence base but according to what is probable. I have made some inquiries since last week’s evidence sessions with the police, and I talked to some friends who are lawyers, and to the police force north of the border, about the difference between the three-year and six-year provision and why Scotland went down the road of three years. To be perfectly honest, no one could tell me exactly why the three-year provision was chosen, but they said that the part of the law that allows them to go back to court is perceived differently from how it would be south of the border.

To that effect, I wonder whether the Minister, in citing Scottish ideas of the law, might be slightly misguided. As seems to have happened in Scotland, I wonder whether, because this is done on a probability or a possibility base, the police have not bothered to use this law at all since its inception. Some people might think that that is because the police did not say that they wanted the period for holding DNA increased beyond three years and that they were happy with three years. It appears that that may not be the case. We will never know, of course, because we will not be able to do the investigation. After the Bill has passed through Parliament and we go to a three-year-period, there will not be much point asking whether someone was right or wrong—it will be too late. The horse will have bolted and we will be stuck with what we have, at least until another Government come in and perhaps change it. Who knows—perhaps the same Government will take another look and change it, although that is unlikely.

I asked the Minister about the cost issue. When I spoke to the people in Scotland whom I mentioned earlier, they said that the cost of extending the period from three years to six put a big question mark on whether it was worth doing—particularly for something that is based not on evidence but on the judge’s perception, at that time, of reliability. If there is some question in police’s mind that it is a waste of their time and effort—a waste of the money it would cost to bring the case to a judge, and a waste of the time that would be spent by everyone involved in deliberating whether to extend the period from three years to six—the chances of the police doing that are remote. They have plenty of other things they have to do that take up a lot of time, and their going through this process is unlikely.

That brings me back to the 1,000 cases issue that we discussed earlier. I would have liked a breakdown of the cases the police were talking about. If they were very minor, perhaps we do not really care, although I would say—I made this point from the other side of the Chamber when we were in government—that we always seem to neglect the victims of the crime. We are so busy looking after the human rights of those who did the crime that we have a habit of forgetting those of the person who has had ill done to them. I wonder whether we go down a road we do not want to go down in some cases. In these 1,000 cases, that may come back to haunt us one day. Perhaps we will never know. Why will we never know? Because we have not looked at whether we should extend the period from three years to six, or to somewhere in between.

Alternatively, as my hon. Friend the Member for Eltham said, the Minister may be correct. Perhaps three years is right, but we will never know because the Government’s position is already so entrenched that they have no thought that they might be wrong. That is a big mistake for any Government to make, and if my Government were making it I would say so. I did so in the past when I thought the previous Government were going too far. It is the duty of every Member of this House to do that if they think their party is going a step too far—if, for example, a lawyers charter for making money is being created, as we discussed in debating a previous Bill, ensuring that enough ambiguity exists within the system for lawyers to make a fortune for years, while the victims never get the justice they deserve. I am sure that colleagues will come across many such cases in years to come, just as those of us who have been in Parliament for some time have dealt with such cases in the past.

Given that the Government are engaged in a cost-cutting exercise, which they are very good at, will the Minister tell me how much this system will cost to set up? He could tell me how much the system under the Crime and Security Act 2010 cost to set up, but how much will this one cost? How much will it cost if the police try to get an extension from three to six years? How long would it take to get that extension? Could they get a judge out of bed one night, as is done for a warrant to raid a house, or do they have to take it to court and go through the rigmarole of defence lawyers and so on? If so, we need to know how much that will cost at the end of day.

I am willing to listen and I am open to the Government’s stance on a lot of things in the Bill. I have my concerns, which I have expressed, in particular on using a form of law south of the border that is not based on evidence, compared with one based on evidence. I have always said that I have a real problem with the “not proven” verdict that we can get north of the border, where the person is found neither innocent nor guilty, which could be an “innocent” verdict with the stigma of guilt written in, although not an actual “guilty” verdict. People’s innocence can be brought into question because they or their lawyer could not persuade the jury to acquit, rather than to give a “not proven” verdict. I would hate to see that happen south of the border as well.

I ask the Minister to look at the costs. If he cannot supply the figures—I doubt whether he will be able to supply them all—I am sure he will write to us with the answers. I also ask him to consider the different styles of law north and south of the border. When writing a Bill, it is important that the same rules should be followed south of the border as north of the border, where I come from.

James Brokenshire (Conservative, Old Bexley and Sidcup)

This has been a helpful debate, highlighting some of the distinctions and differences of approach, with the Opposition’s starting point perhaps contrasting with where the Government are. The hon. Member for Glasgow North West has highlighted his opinion, as did the Opposition spokesman, the hon. Member for Eltham. I get a strong sense that their starting point would be indefinite retention, with the hon. Member for Glasgow North West perhaps wanting to see the DNA database expanded. That argument is respectable. Equally, however, I disagree with it; indefinite retention would not be proportionate, and that is my and the Government’s view.

Jenny Chapman (Labour, Darlington)

I have listened to the debate extremely carefully. I would argue that our starting position is not as put forward by my hon. Friend the Member for Glasgow North West, but that we want the approach to be based on evidence. From the evidence I have been reading, a retention period of six years would seem to mark the point at which the figures for the population that would have its DNA retained equals those for the rest of the population. That is our starting point and we have not heard anything from the Minister to suggest a retention period of three years.

James Brokenshire (Conservative, Old Bexley and Sidcup)

We will come to that, I assure the hon. Lady. I appreciate that she might not have been in the House at the time, but the previous Government’s starting position was that they wanted to indefinite retention, hence the changes made under them. In response to the challenges that arose, the Home Office initially said it wanted 12 years, which got battered down to six years. All I am suggesting is that the starting position of the then Government had been indefinite retention, whereas the Conservative and Liberal Democrat starting point has been “innocent until proven guilty”. That is a difference of approach between the Government and the Opposition. We will come on to points about the evidence and the hazard rate analysis.

Jenny Chapman (Labour, Darlington)

I am more interested in what the Government are about to do, rather than in the positions of the past. However, in the hazard rate analysis, once the level of error is built in for both populations, six years would seem to be a minimum period. If we allow the errors, based on the evidence, we could be looking more at a period of 10 years.

James Brokenshire (Conservative, Old Bexley and Sidcup)

If the hon. Lady is now exhorting her Front Bench to go for a 10-year period, that may be news to them. Perhaps it is consistent with the line of approach that I have been articulating.

The hazard rate analysis, which I examined closely at the time and have continued to review, in many ways supports a three-year retention period. That was the view that the Home Affairs Committee ultimately reached. Regarding the same evidence that the hon. Lady has quoted as suggesting a six-year period, the Information Commissioner states that he

“does not consider that the evidence presented supports a general period of anything like six years.”

It is interesting that the Information Commissioner, taking the self-same information that the hon. Lady and the hon. Member for Eltham pray in aid, suggests a shorter period. I read a lot out this morning about a three-year retention period, and how it was quite robust regarding the sensitivities from which the hon. Lady draws her conclusions. Ultimately, there is evidence, but it points to a three-year period, because of the way in which the hazard rate curve comes down rapidly after the first three years. If anything, that supports the Government’s argument.

Jenny Chapman (Labour, Darlington)

I refer the Minister to the hazard rate analysis, which states:

“If the general population risk were, for instance, three per cent instead of our current estimate of five,”

which the report acknowledges may be high,

“the risks of criminality would equalise after 11 years rather than six.”

James Brokenshire (Conservative, Old Bexley and Sidcup)

I point to the specific reference in the hazard rate analysis. The previous Government were content to adopt a three-year period for young people, even though the hazard rate analysis showed that that was the area where there was the most likelihood of offending. If the hon. Lady is correct in her suggestion, no doubt the previous Labour Government would not have listened and would have stuck to the six-year period. The hazard rate analysis document is quite interesting and useful in many ways in setting out the information about a three-year period. The previous Government were very happy to adopt a three-year period for what the hon. Lady herself may agree is the highest-risk age group. Perhaps there might not be so much difference between the two sides; if the previous Government were happy with three years for young people, perhaps they might be prepared—

Jenny Chapman (Labour, Darlington)

Will the Minister give way?

James Brokenshire (Conservative, Old Bexley and Sidcup)

I want to move on, because I am conscious that we need to cover a number of points in this debate. Perhaps the hon. Lady needs to listen to her own leader, who said on 24 August:

“I want to take my party on a journey to a different identity for the future: social democratic on economic policy, standing for redistribution and tackling inequality, liberal in our respect for individual rights.”

We will see whether that sense of liberalism is reflected in the party’s approach, but the problem is that it is not borne out by what we are seeing. Despite the rhetoric about the new Liberals on the other side of the Committee, Labour Members are not acting in a liberal way. It will be interesting to see how this progresses, in view of some of the statements that have been made and some of the rhetoric about change in how the Opposition consider and reflect on what the future holds. Equally, that needs to be borne out in their actions and their approach to a number of the issues that we have before us.

John Robertson (Labour, Glasgow North West)

The job of Opposition is to ask questions and to scrutinise. If the Minister honestly expects the Opposition to sit and say nothing, he would be better telling the Liberals to come and sit here. Then we will have them sitting here doing nothing, as they are over there. Perhaps we can agree that it is our job to ask the questions. The fact that he shut down my hon. Friend the Member for Darlington from asking a question would suggest that he does not want to hear anything that has a go at his Bill.

Jenny Chapman (Labour, Darlington)

Will the Minister give way?

James Brokenshire (Conservative, Old Bexley and Sidcup)

I will respond to the hon. Member for Glasgow North West, because I am pleased and grateful to have the support of the Minister for Equalities, my hon. Friend the hon. Member for Hornsey and Wood Green, sitting alongside me, who will be playing an essential part in the consideration of the Bill. The hon. Gentleman’s pejorative comments were pretty ill-directed in the message they were seeking to send.

The hon. Gentleman wants to look at evidence. In essence, the argument is that the more DNA we retain, the higher the detections and the greater the impact on crime and bringing crimes to justice. I say clearly, that is not borne out by historical evidence. If one takes the figures from 2005-06—after the change relating to DNA taken on arrest rather than charge—the total DNA-related detections were 40,000. The latest information I have for last year is that detections were down to 32,000.

In the light of the significant growth in the DNA database over that time by around a couple of million—I am happy to confirm the details—is it the case that, as night follows day, the more on the database, the higher the detections? That is not borne out by what has happened. The Opposition may say that there have not been so many detections because crime has fallen so significantly. Even if one accepted that argument, the fact is that total DNA-related detections, as a proportion of total force detections over that time, went down from 3% to 2.7%. Even on that basis, the argument does not stack up. That is without taking into account the increase in the numbers on the DNA database over that time.

I say clearly that there is evidence to show that simply putting more people on the database does not equate to more detections. We are comfortable looking at past evidence, rather than seeking to guess and extrapolate, albeit that the hazard rate analysis is interesting and useful in supporting the case that we seek to make.

Jenny Chapman (Labour, Darlington)

Our position is not that we want more people on the database; we want to get the right people on the database. Criminologists know a lot of things, but the only thing they know for sure is that the most reliable indicator of future criminality is being arrested for a crime. That is why we want those people on the database.

James Brokenshire (Conservative, Old Bexley and Sidcup)

The hon. Lady is saying that arrest is criminality. She is suggesting that simply because someone is arrested they are guilty. That is not necessarily a fruitful line of argument.

Rehman Chishti (Conservative, Gillingham and Rainham)

The hon. Lady talks about getting the right people on the database. Will the Minister clarify and confirm that according to Home Office statistics from 2007, 500,000 people were wrongly put on that system? That is why the system has to change.

James Brokenshire (Conservative, Old Bexley and Sidcup)

My hon. Friend makes a very important point, of around 1 million people without any current convictions sitting on the national DNA database. I hope the hon. Lady would accept that simply putting people who are innocent until proven guilty on the DNA database is not in principle the right approach. With the DNA expansion programme that took place under the previous Government, there was a desire to get as many people on to the DNA database as possible and to keep them on there. It was only as a consequence of the S. and Marper judgment that there was any acknowledgment, reluctantly, that that might be the wrong course of action. So that is the history to all of this. It is important to highlight that to give some context and background to our debate.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

Does the Minister agree that there is one respect in which one should extend the DNA database, and that is for people who have been found guilty but whose DNA is not currently there?

James Brokenshire (Conservative, Old Bexley and Sidcup)

That is a point of agreement on both sides. There should be the right to take DNA samples from those who have been convicted of offences and whose DNA has not been taken. That was a point of agreement under the previous Government. I said that at that time when I was on the Opposition Benches. Obviously that power has been implemented and as we heard in evidence last week, the Association of Chief Police Officers is now taking it forward to get convicted people on the database.

There is a sense of proportionality and judgment and we can look at the evidence historically and at what the previous Government produced. But even as the analysis that was cited in that document showed, it is ultimately a question of judgment. We judged that the previous Government put the line in the wrong place and we believe that the changes that we are making in the Bill take the appropriate and proportionate line in that regard.

There was also an analysis of the Scottish system, to take on board the point made by the hon. Member for Glasgow North West. Professor James Fraser, an eminent expert in forensics, examined the robustness of the Scottish system taking account of the views of stakeholders, the available information and experience elsewhere. He concluded that the

“retention of forensic data for a three-year period, from individuals subject to proceedings for relevant sexual or violent offences but not convicted, is in principle, appropriate.”

It was not that there was no analysis or consideration: there was as part of the review undertaken by Professor Fraser.

It is not just me who recognised that this was the case. I draw the Committee’s attention to the letter that Lord Bach sent to Lord Pannick following a debate on DNA retention. Referring to the Fraser report, he wrote:

“He did not uncover any evidence to suggest that this approach to retention has caused any detriment to the detection of serious crime in Scotland.”

Lord Bach, then Under-Secretary of State at the Ministry of Justice, drew attention to the examination by Professor Fraser of the Scottish system which supported the three years, plus two years’ extension.

The hon. Member for Glasgow North West referred to costs. According to the regulatory impact assessment, the initial set-up costs are £10.8 million and the average annual running costs are £3.1 million. So the set-up costs are materially lower than those envisaged in the Crime and Security Act 2010. There is a clear difference here. We believe on the basis of historical evidence and the analysis that has been undertaken in relation to the future—the hazard rate analysis curve—that three years is an appropriate period for retention.

I recognise that there is a broad range of views in this area but I ask the Committee to recognise that the weight of opinion in various arenas is in favour of the Scottish model, as we heard from Liberty, Justice, the Law Society, the Criminal Bar Association and GeneWatch in oral evidence last Tuesday. We have consistently supported the adoption of the Scottish model and that was a central plank of the programme for Government announced last May. We believe it represents an appropriate balance between the rights of those who have not been convicted by a court and the necessities of public protection in some of the most difficult cases.

Jenny Chapman (Labour, Darlington)

Has any analysis been done of the different intervals at which crimes are committed following arrest? I have read research that suggests that in the initial three-year period, when the Minister is right to say there is a very steep drop-off in criminality, most of those crimes will be relatively less serious in the minds of most people. There is a much longer interval between initial arrest and subsequent arrest for very serious crimes, such as sexual crimes or nasty, violent crimes. What analysis have the Government made of the difference in the length of time that it would be sensible to retain DNA on different crime types?

James Brokenshire (Conservative, Old Bexley and Sidcup)

We have looked at a number of pieces of evidence. The hazard rate analysis has been helpful in that regard, and indicates why we think that three years is appropriate. In that analysis, it was interesting that sexual crimes and violent crimes were also highlighted as a potential distinction, which is a reason why we put specific emphasis on those cases. Again, that was an issue for the previous Government. They made distinctions between serious crimes and less serious crimes, as embodied in the 2010 Act.

Jenny Chapman (Labour, Darlington)

I cannot resist intervening, because the Minister is wrong, although I am truly grateful to him for giving way again. The report says that offenders very rarely tend to be specialist offenders and, most often, they are generalists. It is therefore not possible to tell on first arrest, depending on the crime that they have been arrested for, what future crimes people might commit. The Government just do not have the evidence to support treating DNA in this way.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I again refer to the quote from the then Labour Justice Minister, Lord Bach, who made the point that the different approach of the Scottish system did not have a material impact on the ability to solve serious crimes. The hazard rate analysis draws this out in one of the charts relating to sexual offences and serious violence. It looks at a one-year period, when there could be repeat offences within the same category of offences, so the document draws attention to that specific point.

In suggesting that six years is the appropriate period, the Opposition have the balance wrong. It is interesting that there is some confusion; they were willing to start off with a three-year period, albeit not in the way that we would frame it in the clause. We have different views that are not likely to be reconciled in the course of this sitting. None the less, in light of our debate, I ask the hon. Member for Eltham to withdraw his amendment.

Clive Efford (Labour, Eltham)

We fundamentally differ in our approach to the matter. As my hon. Friends the Members for Darlington and for Glasgow North West have attempted to point out, we are not arguing for a fixed position on length of time. As was said at the time of the 2010 Act, we need detailed analysis of the assistance that retention of details for more than three years, and up to six, gives the police for detecting and preventing crime. We can then consider whether the measure is appropriate, or whether four, two, five, seven or eight years would be better. As the Minister indicated, some data in the hazard rate analysis suggest that there are issues about a longer period. We are not proposing that or arguing for it; what we are saying is that there must be an evidence-based approach.

The Minister has responded to some issues, but there is still the matter of extensions. It has been made clear to us that extensions are unlikely to be sought by the police and that none, as yet, has been sought in Scotland, as my hon. Friend the Member for Glasgow North West said. Has ACPO outlined any costs for taking steps to extend the retention of materials? I suspect that the figure is zero, since the association has already said that it cannot manage the process on a case-by-case basis given that there are so many items on the database. My hon. Friend the Member for Glasgow North West asked about that, and I wonder if the Minister has been given any information from ACPO about it.

My hon. Friend the Member for Darlington raised important issues about the hazard rate analysis, not least that the first crime is not a sign of what might take place later. Also, for more serious crimes, she has seen data that suggest that there will be a longer time lapse between arrest for a first offence and committing a second or more serious crime. We fundamentally disagree with the Minister about such matters, and we shall press the amendment to a Division.

Clive Efford (Labour, Eltham)

I beg to move amendment 21, in clause 3, page 3, leave out from line 37 to end of Clause.

Martin Caton (Labour, Gower)

With this it will be convenient to discuss the following:

Amendment 28, in clause 3, page 3, leave out lines 37 to 39 and insert—

‘(7) The responsible chief officer of police or a specified chief officer of police may write to a person on the DNA database to notify them that an extension of the retention period is necessary on an opt-out basis.

(7A) If the person responds wanting to opt-out, the responsible chief officer of police or a specified chief officer of police may apply to a District Judge (Magistrates’ Courts) for an order extending the retention period.’.

Amendment 29, in clause 3, page 3, leave out lines 37 to 39 and insert—

‘(7) The responsible chief officer of police or a specified chief officer of police may write to a person on the DNA database to notify them that an extension of the retention period is necessary on an opt-out basis.

(7A) If the person responds wanting to opt-out, the responsible chief officer of police or a specified chief officer of police may apply to a District Judge (Magistrates’ Courts) for an order extending the retention period.

(7B) The commencement of new section 63F shall not take place before the following—

(a) the Secretary of State must make an order made by statutory instrument which sets out circumstances in which DNA will be retained and a criteria for extension decisions,

(b) the Statutory Instrument has been laid before, and approved by a resolution of, both Houses of Parliament.’.

Amendment 30, in clause 3, page 3, leave out lines 37 to 39 and insert—

‘(7) The responsible chief officer of police or a specified chief officer of police may write to a person on the DNA database to notify them that an extension of the retention period is necessary on an opt-out basis.

(7A) If the person responds wanting to opt-out, the responsible chief officer of police or a specified chief officer of police may apply to a District Judge (Magistrates’ Courts) for an order extending the retention period.

(7B) The person on the database may apply for the Court to be held on camera.’.

Amendment 31, in clause 3, page 3, leave out lines 37 to 39 and insert—

‘(7) The responsible chief officer of police or a specified chief officer of police may write to a person on the DNA database to notify them that an extension of the retention period is necessary on an opt-out basis.

(7A) If the person responds wanting to opt-out, the responsible chief officer of police or a specified chief officer of police may apply to a District Judge (Magistrates’ Courts) for an order extending the retention period.

(7B) The person will remain on the DNA database, including after the initial retention period, if the court process is subject to delay.’.

Clive Efford (Labour, Eltham)

The amendments deal with the process whereby the police may apply for someone’s DNA to be retained for an extended period. The Bill proposes that such applications should be made through a magistrates court. We suggest that in the first instance it may be more appropriate for the police simply to write to the person indicating their intention. That might avoid a whole load of bureaucracy and unnecessary court time.

We are also concerned that, theoretically, somebody could be arrested for something prescribed by the Secretary of State—a serious violent or sexual offence, say—but not convicted, so they are innocent before the courts. The police might then make an application because of their concern about the nature of the crime. Despite the matter not being tested before the courts and not being proven, that person’s name would be put before the courts and a public procedure undertaken in which the police would set out a case for the retention of their DNA.

If I am wrong, I am happy to be put right by the Minister, but my understanding from reading the Bill is that it is theoretically possible that a person in such circumstances, whose DNA has been retained under a prescribed procedure, could find themselves named in open court. That seems a retrograde step. It would clearly cause distress to that person. Even though their DNA had been retained for a serious crime, they might be innocent so it could have an enormous effect on their life; they might feel stigmatised by having gone through the courts.

Professor Alec Jeffreys gave evidence to the Select Committee for its report on DNA last year. He cited a case in which someone apparently committed suicide because of the shame they felt at being on the DNA database. Somebody who had been through open court, and whose name had been used in open court, would presumably feel that even more severely. That is a concern, and it is worthy of the Committee’s discussion to determine whether the procedure will be that such applications are to be made in open court and, therefore, reportable in the local press. Magistrates courts could put a restriction on the reporting of such cases, but in close-knit communities no restriction can be put on word of mouth. In theory, somebody could find themselves stigmatised.

I might have misread the Bill, but this is a probing amendment and I am happy to be put right by the Minister. The amendment suggests that if there is disagreement, the matter could then go before a magistrates court to be determined. If the police write to an individual and say, “We are minded to keep your DNA for an extended period,” and the person says, “No, I do not agree with that,” there has to be some sort of adjudication. That is our proposal, but Governments have the habit of accepting only amendments that have been drafted by the parliamentary counsel. The DNA strategy board could deal with the matter if the Government do not accept this excellent amendment. Perhaps another adjudicating body should deal with such situations in camera, without the full glare of someone being named in public.

Michael Ellis (Conservative, Northampton North)

Is the hon. Gentleman not concerned about an officer writing a letter in that fashion? If he recalls the evidence given on the historic gross indecency convictions, he might be concerned that such letters may in themselves intrude into the private lives of individuals who receive them. Family or friends may see them, which may be injurious to the recipient.

Clive Efford (Labour, Eltham)

The hon. Gentleman makes a good point, which may be true. Presumably, the person would have received a letter telling them that they were going to court, so I am not sure where it begins and ends—perhaps they get a text message.

Nicola Blackwood (Conservative, Oxford West and Abingdon)

I think my hon. Friend’s point is that the letters in the proposal would go to every single person whose name is removed from the database rather than only to those for whom the police choose to extend the retention period. As we have seen in evidence from the Scottish model, that will by no means be for the majority of those who are having their names removed.

Clive Efford (Labour, Eltham)

I am sorry if I have given that impression and have misled the hon. Lady. That is not what I suggest; I merely suggest that if the police were minded to keep someone’s data, they should indicate their intention to that person.

I accept the point that the hon. Member for Northampton North has made. Even under the Bill, however, if the police were inclined to keep someone’s data for longer, they would have to communicate with the person in some way. In that case, the same situation applies, and the matter is worthy of further consideration. Perhaps the hon. Gentleman will draft a more accurate amendment.

Gareth Johnson (Conservative, Dartford)

Will the hon. Gentleman concede that an additional difficulty with the amendment is the service of documents? From my experience, in approximately a quarter of summonses some difficulty arises in the service of documents—people move addresses and so on. Of course, people might level allegations at the police, saying that they have deliberately sent letters to addresses they knew were incorrect, and so on. How would the hon. Gentleman tackle that problem if the amendment were accepted?

Clive Efford (Labour, Eltham)

We are opening up a number of interesting questions that had not occurred to me. Such questions apply, of course, both to our proposal and the Government’s provision. I shall take the hon. Gentleman through the process, if I understand it correctly. The police assess an individual case and then decide whether they want to extend the retention of that material. To do so, they must apply to a magistrates court. They might send a letter to people saying, “Look, we don’t need to go to court. If you’re in agreement, we’ll keep your information for another couple of years,” or they might send one saying, “We intend to apply for this extension and we are going to the magistrates court. This is what you need to do and these are your rights.” The problem that the hon. Member for Dartford has highlighted would apply to both procedures equally, so we have the same problem.

Gareth Johnson (Conservative, Dartford)

The difference between the two systems is that there will at least be a judicial process in the Government’s provision. Under the hon. Gentleman’s amendment, all that is required is that a letter be sent. Such a letter might go into the great blue yonder, and the DNA extension would apply if there were no reply.

Clive Efford (Labour, Eltham)

The hon. Gentleman may understand something that I do not. How does he think that the process in the Bill will be communicated to the individuals concerned? Presumably they will have to be told. Under those circumstances, I cannot see the difference. The documents still need to be delivered, whether that is done using my proposal or that of the Government.

Gareth Johnson (Conservative, Dartford)

The point is that it is something the court can take into account. The court can say that it is not satisfied there has been an adequate service, and therefore it will not extend the time limit. Under the amendment, no one would know whether the service had taken place, and it would simply be the case that they had not had a return.

Clive Efford (Labour, Eltham)

If the police are concerned about an individual, I hope they would have some idea where that individual is, and that they would ensure they elicited some sort of response before taking any action. We have returned to the same problem. The court will have to make a decision based on the evidence put before it by the police. Are we saying that the court will make that judgment in the absence of any response from the individual, and that no attempt will be made to contact that individual? As far as the procedure is concerned, the DNA strategy board will oversee the management of the data and can issue guidance. The proposals for the strategy board are not dissimilar from proposals in the previous legislation, and they will include an oversight of how the police manage the information. They could also include an oversight as to how the procedure works.

The Bill is aimed at protecting the civil liberties of innocent people. I would find it difficult if one of my constituents came to me because their name was going to be presented before a court, and the police said that they wanted to keep that person’s data for a longer period. We would all have a great deal of difficulty dealing with that piece of casework if it came our way, and I have suggested a means by which we might avoid that but still have some oversight. The points made by Government Members are legitimate in terms of having oversight of the process, but, as I understand it, that lies with the DNA strategy board.

Steven Baker (Conservative, Wycombe)

I am struggling to see why the hon. Gentleman does not object in principle to the retention of DNA for everyone who has been arrested but not convicted.

Clive Efford (Labour, Eltham)

The procedure in the Bill allows the police to apply for an extension. I am merely trying to set out a mechanism that would not involve the person being named in public. The Minister may say that it does not actually mean that, and that there is a simple way round it. I cannot see it in the Bill, but the Minister will point out if I am in error. The points made by Government Members are legitimate, but—I repeat—they are legitimate concerns about the procedure that we would follow under the legislation. The Government may want to consider those issues further. It would concern many people if an innocent person who had not been before a court or convicted of anything were named in court by the police as someone whose DNA they want to retain.

The most disturbing thing about the legislation is that this entire discussion could be completely hypothetical, given that ACPO has said that it does not think there will be any of these applications. Effectively, we are talking about a three-year limit. That is peculiar because the Government have accepted in principle that there are situations in which that period should be more than three years, otherwise the measure would not be in the Bill. There are people whose data it is reasonable to retain for more than a three-year period, and there should be the ability to extend that. In Scotland, that period can be extended and there is no limit on the number of extensions. This legislation allows for just one extension. If that is the case, I go back to the point that my hon. Friend the Member for Darlington made earlier about the hazard curve, and the fact that there are people who have a propensity to be re-arrested within that six-year period. The Government clearly recognise that, because they desire an extension up to a maximum of five years.

If ACPO is telling us the truth—I have no reason to suggest that it is not—and this will actually happen despite there being the power to apply for extensions, we are talking about a three-year limit here, with no extension. ACPO says that it does not have the resources to analyse a list of 6 million items of data and come up with the individual records that it would find it desirable to keep. That means that we are talking about an effective three-year limit with no extensions. We must be clear about that, because that was the evidence presented to us by ACPO.

The other concern I have is that ACPO, perhaps under guidance from the DNA strategy board, may come up with a blanket approach. It might set the criteria by which it would apply for those extensions. In itself, it will be a problem for any individual who is arraigned in court for their biometric materials to be retained for an extended period, because everyone will know why they are there—the process will stigmatise them. I suggest that that process will not be used, and that it is more likely to be used if there were an arrangement where it could be agreed between individuals and minimise the number of cases that have to go before the court.

The process of applying for extensions seems fraught with problems, both if they are granted, and if they are applied for at all. ACPO says that they will not be used—they are not used in Scotland and will not be here—so we are talking about a three-year limit even for those cases where we would perhaps be alarmed that the data would be released after three years. There might only be a handful of them, as the hon. Member for Gillingham and Rainham said this morning, but even so we would potentially be preventing very serious crimes, so there is concern about that. There is also concern about the impact on the individuals should the police enter into this process.

I would be grateful if the Minister were to respond to my points. If I have just been wittering on and speaking complete rubbish for the past 20 minutes or so—he is my neighbour as an MP and is far too decent a chap to be rude to me—I apologise. However, if that is the process, we would all be concerned if a constituent of ours came to tell us that their name was going to be used in court in that way.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I thank the hon. Member for Eltham for his kind personal comments, and I certainly would not be unkind enough to say that he had been talking nonsense in that way. [ Interruption. ] I am sorry that I caused him to laugh because I know that that is not necessary good for his health either, even though he has his Strepsils with him. However, it can be dangerous to challenge the parliamentary draftsmen, as I think he perhaps did.

I was grateful for the hon. Gentleman’s explanation because I had looked at amendment 30 quizzically. It states that the

“person on the database may apply for the Court to be held on camera”,

and I thought that was a way of discouraging people from going forward with their application. The court would be filmed and the recording used in a way that might discourage people from challenging or seeking to use the powers or rights. I suspect that that is a typographical error and that it should read “in camera,” but it is precisely for that reason that I am grateful that I have parliamentary counsel on this side to assist with drafting issues.

The amendments would provide alternative arrangements to replace the Scottish model for extending the retention of biometric material from unconvicted individuals with an opt-out system, in which if a person did not object to their material being retained for longer, the police could just retain it and would not have to make an application to the courts. Amendment 29 would add to that basic formula a requirement for guidance on the criteria for extended retention. Amendment 30 would provide that any hearings before the court may take place in camera—or “on camera”—and amendment 31 would enable the police to retain material pending the outcome of the court’s decision.

I shall first deal with the proposed opt-out mechanism. The Government consider that the judiciary’s involvement in the process in respect of every application to retain material for more than three years provides an appropriate independent check on the police’s power to retain material. Although we have some sympathy with the potential saving in police and court time that such a system might produce, we believe that the oversight provided by the courts is an important way of increasing public confidence in how the police use and retain DNA—public confidence is particularly relevant here. In addition, given that almost three years would have passed since the individual was arrested, I would have concerns that an individual might have their DNA retained for an extended period purely because they had moved house and the police were unable to contact them. Hon. Friends have made some important points about how that might operate, but it might simply be that someone has moved house, communication is not possible and there is a subsequent automatic retention. I would certainly not want indefinite retention by the back door to be almost created in that manner.

It might also be the case that far from reducing the administrative burden on the police, the approach would increase it, as it would require them to send a notification to all affected persons, advising them of their right to opt out. I am all for streamlining the process, but the amendments could have the opposite effect.

Jim Shannon (DUP, Strangford)

Last week in my constituency there was a horrendous attack on an elderly lady. I spoke to the police about it, and they said that they would want to have DNA retention for a longer period. I am curious to know what discussions the hon. Gentleman has had with the police. Have they said that they want a DNA bank retained for a longer period than the one that the coalition suggests, and if so, is he prepared to take that on board? From what the police tell me, they do want a longer period.

James Brokenshire (Conservative, Old Bexley and Sidcup)

The hon. Gentleman might have missed the preceding mini-debate. We certainly took that issue through in some detail, and considered six years versus three years and three years or not for young people. ACPO’s previous position was ideally to retain for as long as possible, but we have considered the issue carefully in the context of what is appropriate and believe that the right balance has been struck. I do not want to reopen some of our debates on the previous group of amendments.

On the add-ons to the proposed opt-out system, in relation to amendment 29 it would not be appropriate for the Home Secretary to give guidance to members of the judiciary about how they exercise their functions. Such guidance might be seen to fetter their independence. However, I am happy to consider whether guidance to the police would be appropriate in such circumstances, and if so, who might give it. I point out that there is no such guidance in Scotland, where sheriffs have a general discretion when considering applications from the police.

Clive Efford (Labour, Eltham)

I always preface questions like this by saying, “I am not a lawyer”—why am I looking at the hon. Member for Northampton North?—but what is the difference between what is in the amendment, which the Minister says would mean the Secretary of State providing guidance to the judiciary, and the prescribed cases, where the Secretary of State would allow retention via the commissioner for the use and retention of biometric material? Do they not provide the same limitation on circumstances in which retention can be extended?

James Brokenshire (Conservative, Old Bexley and Sidcup)

There is a big distinction between a commissioner and a court and, on the separation of powers, between the judiciary and a commissioner who may be appointed under statutes. I make that point to explain why the hon. Gentleman’s amendment is not appropriate in the context of the review that would be undertaken by a magistrates court. I am aware that there is a body of opinion that hearings before a district judge in those circumstances should not take place in open court, given that such individuals are innocent by definition, which I think is the key argument that the hon. Gentleman is advancing in his amendments.

We would normally expect such hearings to take place in private—in a closed court or in the judge’s chambers. However, the decision on whether to do that is for the judge hearing the case, and that would normally be provided for in the rules of the court, which are set by the judiciary, rather than in legislation. For those reasons, amendment 30 is not necessary, because of the separation of powers issues that I have alluded to.

Finally, on amendment 31, the police’s ability to retain material pending the outcome of an extension hearing is implicit in the clause, as any other outcome would render the proceedings redundant. Therefore, that amendment is also unnecessary. For those reasons, I invite the hon. Gentleman to withdraw his amendment.

Clive Efford (Labour, Eltham)

Will the Minister clarify the process that came up during our exchange? The procedure is that the police decide that they want to extend the retention of a piece of biometric information, but do they have to apply to the commissioner before they go to the court? Under the guidance from the Secretary of State to the commissioner on prescribed cases—for want of a better term—does the commissioner decide that the police may apply for that extension? Is that the correct procedure?

James Brokenshire (Conservative, Old Bexley and Sidcup)

No, it is not. Just for clarification, the role of the commissioner in relation to sexual or violent crimes in cases where someone has been arrested but not charged is on the decision as to whether there should be an initial three-year retention period. In other words, the police have to make reference to the commissioner to have the right to retain material for that category of person—someone who has not been charged with an offence—for the initial three-year period. It is at the time of seeking a two-year extension that an application would have to be made to the court, whether in that class of case, or in cases of people who had been charged but not convicted of offences and where the initial three-year period had already been triggered. The police would therefore be applying to the court only for the two-year extension beyond the initial three-year period. In such circumstances, it would not be the role of the commissioner, purely that of the court, given our argument for the need for judicial oversight of the two-year extension.

Clive Efford (Labour, Eltham)

The commissioner is involved in the initial decision to retain but has no further involvement if the police want to consider an extension. That is curious—it would seem logical for the commissioner to reconsider whether an extension was appropriate. Many of the cases might fall at that point and not reach open court. Is there a specific reason why the commissioner is not involved at that stage?

James Brokenshire (Conservative, Old Bexley and Sidcup)

Ultimately, it is a question of liberty at that point—with a two-year extension taking the total to five years, we believe that an appropriate check and safeguard is to have the case in court, for a decision at that time by the magistrate.

We have a tiered level of oversight for that specific group of those who have been arrested for but not charged with a sexual offence or a crime of violence, with the scrutiny of the commissioner and then, more generally, if there is to be a further extension from three to five years, determination by the judiciary. That is why we believe the safeguard to be the appropriate one in that situation.

I hope that the hon. Gentleman will withdraw his amendment.

Clive Efford (Labour, Eltham)

I am grateful to the Minister for his response, but my concerns remain. I shall not press the amendment to a Division, but I wonder whether a court procedure is proportionate in such a case, because the person has not committed any crime. I am reassured that the proceedings will take place behind closed doors, but it is something for someone to have their name taken before a magistrate, with the police making a case.

We are talking about the protection of people’s rights and, in this case, the rights of people who are innocent. Yes, there is an infringement of people’s civil liberties in the retention of their profile in the national DNA database—I accept that—but is that proportionate to being taken before a local magistrates court as suggested?

As I understand it, the process can take place without the person’s knowledge. I apologise if the flaw is in the drafting, but the intention was for the police to seek a response from the individuals concerned, not just to fire off a letter, pop into court and extend the retention of their DNA. If there is no response, of course some independent body has to adjudicate. In this case, it is the courts, but it might be a process going through the national DNA strategy board.

That said, I hope the Government will take on board the concerns, give the issue more thought and see if there is a way of being less authoritarian with people on the process by which we seek the extension.

Jim Shannon (DUP, Strangford)

Last week in the papers—I think the Evening Standard—the headlines were about the gentleman who was caught for the vicious rapes and burglaries, and the case only happened because he was caught trying to burgle the house and the police had DNA that went back 17 years. Is that not an example of the need to have a larger DNA retention bank?

Clive Efford (Labour, Eltham)

We have been through that point in a great deal of detail, and we shall probably return to it as we proceed through more of the clauses. The hon. Gentleman expresses a concern about how much the changes in the Bill will limit the ability of the police to detect and prevent serious crime. That is the thrust of our arguments.

I was mistaken in what I indicated—we do want to press the amendment to a vote. I apologise for misleading you, Mr Caton, but then a celestial voice whispered in my ear, from somewhere, so we will be pressing for a Division.

Clive Efford (Labour, Eltham)

It has been a pleasure to debate this clause, which is probably one of the most controversial clauses in relation to DNA. The youthful Minister is an innocent-looking individual who hardly looks weathered enough to be a Member of Parliament. I am afraid, however, that he has fallen among a bad lot—the Liberals—and it is not good for him. It is making him do things that, instinctively, he would not normally do. We are concerned about him.

The issue is a matter of balance and, as the Minister said earlier, drawing the line in relation to what period we should retain people’s biometric details for. We say that it should be evidence-based. The previous Government did not go into power on a promise to introduce control orders or automatic retention of DNA on arrest. It was events that led to the legislation that introduced those things. There was public demand for new technology to be used, as DNA became more and more effective and serious crimes were detected. It is events that will affect this Government in years to come. The public will respond to those events and demand that the Government take action. It is public opinion and the demands of constituents that force Members of Parliament to legislate and introduce laws that protect the public and that, at times, infringe on civil liberties.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

But does the hon. Gentleman agree that many Members—possibly all of them—have also received strong representations from people who want the DNA database to be scaled back?

Clive Efford (Labour, Eltham)

I do not deny that there are people who are concerned about the DNA database. I prefaced my comments by saying that a balance needs to be struck. It is about where the line is drawn. The Minister referred to detection rates. In spite of the fact that the DNA database had grown, they are down to 32,000. That is a piece of evidence that suggests that the blanket approach to retaining DNA may not be the most effective and may make the database unwieldy. We need, however, to make that decision on the basis of evidence. The analysis of the evidence will prove to us, in light of experience, whether what is in the Bill is the best way to proceed, or whether DNA should be retained for a longer period.

The Minister referred to Professor Fraser’s analysis, which he undertook in 2008—the year after the three-year system was introduced in Scotland. There is a letter to the Chair of the Select Committee from the Home Office. There is no name at the bottom of the letter, which I have printed out from the parliamentary website, unfortunately, but it is presumably from a Home Office Minister:

“It has been suggested that the research carried out into the Scottish system (by Professor Fraser) did not uncover any evidence to suggest that the Scottish approach to retention had caused any detriment to the detection of…crime. However, that is to misunderstand this research which did not assess whether alternative systems would have been more effective. It was also unable to review how many serious crimes went undetected as the relevant DNA profiles had been deleted and, therefore, was not in a position to conclude whether there was any detriment to the detection of serious crime.”

That was the evidence that was presented to the Select Committee and calls into question the evidence base that is used in the impact assessment by the Government to support the proposal for three years.

My hon. Friend the Member for Darlington did a very detailed analysis—I hope that she will contribute to the debate—of the hazard rate analysis and how that tapers off, and the likelihood of people who have been arrested being re-arrested for a crime, and the length of time that can elapse between being arrested and when they commit a serious crime. Those are issues that we need to analyse in the light of hard evidence, and I suggest to the Minister that we do not have that evidence yet.

Jenny Chapman (Labour, Darlington)

The hon. Member for Carshalton and Wallington let the cat out of the bag when it was revealed that hon. Members on the Government Benches had received many representations suggesting that the public are not happy with the DNA database. That suggests to me that that decision is politically motivated and not based on evidence at all.

Clive Efford (Labour, Eltham)

It is true to say that some of the bold statements about civil liberties issues that were made before the election have boxed people into taking a position on certain issues. I would not normally pray in aid in these circumstances George Monbiot—not one of the greatest fans of the previous Labour Government and their legislative record, particularly relating to civil liberties—but he has an amusing article in The Guardian today pointing out the huge gaping holes in the Bill—what is laughingly called the freedom Bill. He welcomes how far it goes, but then points out the sorts of things that the hon. Member for Carshalton and Wallington would no doubt want to see in the next Queen’s Speech for the coalition Government, in his No. 2 freedom Bill, which he mentioned on Second Reading.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I am entirely confident that the Minister, who is seeking to intervene on the hon. Gentleman, will confirm that this is not the end of the story in relation to protection of freedoms.

Clive Efford (Labour, Eltham)

I am almost speechless. I am looking across at Conservative Members and they are just being told that the next Queen’s Speech is being written as we deliberate.

Martin Caton (Labour, Gower)

Order. Can we concentrate on the Bill?

James Brokenshire (Conservative, Old Bexley and Sidcup)

Will the hon. Gentleman give way?

Clive Efford (Labour, Eltham)

I will give way to the Minister.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I was particularly interested that the hon. Gentleman was quoting that article from The Guardian. Will he confirm whether Mr Monbiot welcomed the reform of the DNA database as part of the Bill?

Clive Efford (Labour, Eltham)

Mr Monbiot is bound to welcome any step in the right direction as assessed by him. However, the body of the article’s argument was that the sweeping statements that people have made about civil liberties, the Bill and how they were going to liberate everyone from the yoke of legislation under the Labour Government were a bit overblown.

Rehman Chishti (Conservative, Gillingham and Rainham)

On the point about civil liberties, does the hon. Gentleman agree with the assertion made by the leader of his own party, which was that Labour was far too casual about civil liberties under the previous two Prime Ministers?

Clive Efford (Labour, Eltham)

The Labour party is never split.

Every new leader has to assert themselves and set a new direction for their party. I think that the Home Secretary once said, “We were the nasty party.” She called the Conservatives the nasty party, and they had to change. We have all been there and we have all done it. We have all got the T-shirt and the scars on our backs.

When dealing with the clause, I was searching around for bits and pieces to help me make my argument. I came across this thing called the “Policeman’s Song” [Hon. Members: “Sing it.”] I will not sing it to you, Mr Caton—not that you would not be entertained if I did, but because I am not a good singer. One could interpret that to suggest that it fits in with what we are discussing, on the issue of balance. The lyrics say:

“When a felon’s not engaged in his employment,

Or maturing his felonious little plans,

His capacity for innocent enjoyment,

Is just as great as any honest man’s.

Our feelings we with difficulty smother,

When constabulary duty’s to be done.

Ah, take one consideration with another,

A policeman’s lot is not a happy one.”

It is certainly not a happy one in relation to the Bill and the tools that are currently in the toolkit of the police in fighting crime. The lyrics suggest that there is a balance. We cannot jump to conclusions about people’s guilt or innocence, and there is a duty on us as MPs to strike that balance, but in doing so, not unreasonably diminish the ability of the police to carry out their duties. The Bill seeks to limit one of the most useful tools in the toolkit of the police, without an evidence base for doing so.

To return to the point that was made when we were debating the amendments, it may well be that the three-year period is the correct one, but there is no evidence to back it up at the moment. However, we would have the ability to produce that evidence by using the DNA database on a six-year basis and analysing whether there are any benefits in retaining DNA beyond three years for up to six years. That is the thrust of the argument, and the position that the Government were left in when the 2010 Act was passed.

As I said earlier, I did not start with a fixed view on the matter—new leader, new beginning—and I was able to review where we have stood on such issues and determine whether a six-year period or a three-year period is the correct one. The more I have looked into this, the more I see the problems of managing the process. There are civil liberties issues about the retention of DNA. There are organisations and private companies that will still retain DNA material that cannot be removed on their databases, although personal identification will be removed. Dr Wallace from GeneWatch said as much in his evidence in answer to a question from my hon. Friend the Member for Darlington—

Robert Buckland (Conservative, South Swindon)

Dr Wallace was a lady.

Clive Efford (Labour, Eltham)

I beg your pardon. It is not that I need glasses, but I was not there for the evidence. I simply read the evidence. She said that there was concern about that material being retained. There is an issue of trust, and that needs to be monitored and overseen to ensure that the public can have confidence in what is being held and how. As for the detailed DNA information that the forensic science services have, an individual can be identified. The information there is their DNA ID, which is not removable, and a single individual can be identified.

The Bill, as I said earlier when I was poking fun at it, is called the Protection of Freedoms Bill, but we should change its name to the bits and pieces Bill—give a bit here, shave a bit off there, take a little bit back over there. It has certainly been over-hyped amid claims that the Bill means that all innocent people will have their DNA removed from the database. That is not true. We have had suggestions from the Deputy Prime Minister and great sweeping statements about how the Government will be sweeping away all the restrictions on people’s liberties. Even on Second Reading, the Secretary of State had to be pulled up by my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper), who warned her that she was suggesting that every innocent person would have their DNA removed from the database, and the Secretary of State had to accept that that was not the case. It goes back to the point that I made earlier when we were debating the first amendment. The way that people have approached this debate has often been inaccurate and has led to people misinterpreting how we are dealing with DNA profiles.

The Secretary of State, as the Minister has done, referred to the ability to retain DNA in certain circumstances. It will be interesting to tease out from the Minister what is behind the Government’s thinking and what those certain circumstances are. He has referred to vulnerable people, but what does that mean and how far do the Government intend to go in prescribing for the retention of DNA material? If we are to consider the Bill as the measure that wins freedom for people who otherwise might unfairly have their personal data retained on the national DNA database, we cannot go through it and then find that the Secretary of State decides to do something else. We really need some indication from the Government of just how far they intend to go with prescribing so that we know exactly what we are talking about. We may even want the Secretary of State to go further. There may be some crimes that she is not intending to include that some of us feel may need to be included.

I do not want to be pulled up by you again, Mr Caton, but we know that the hon. Member for Carshalton and Wallington is planning the next Queen’s Speech and the protection of freedoms Bill No. 2. And we have some very powerful lobbying groups and individuals—[Interruption.] There is nothing wrong with that. I am sure that we in Labour will enjoy the spectacle of the Liberals drawing up the next Queen’s Speech for the coalition.

Nicola Blackwood (Conservative, Oxford West and Abingdon)

I just want to make the very small point at this stage that some of us on the Conservative Benches are also civil libertarians. It is not only the Liberal Democrats who are civil libertarians.

Clive Efford (Labour, Eltham)

We shall see.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

May I reassure the hon. Gentleman that anything that is put forward as a protection of freedoms Bill No. 2 will, of course, be agreed with our coalition partners?

Clive Efford (Labour, Eltham)

It is all fine on the day—and then there are tears afterwards.

As I was saying, we have some very powerful lobbying groups who are also pressing us. We heard from the Information Commissioner that we should not have speculative searches and that the record of someone who has been arrested but not charged or cautioned should not even be on the police database. I am sure that the direction of travel for some of the people supporting the Bill goes further than many of us here might want to accept.

On the argument that there should be no speculative searches, there are some cases where people have been identified as a result of a speculative search. The case I referred to earlier was that of Abdul Aziz. He was arrested for a minor drugs offence and he would have been subjected to a speculative search, but his DNA would not have been retained. Five months later, he committed a very serious crime. The changes we are proposing to the Bill involve an issue that the public are greatly concerned about.

We will be losing some of this data for ever—that is the point. We have an opportunity here to do something that could prove to all of us, once and for all, how long we should retain DNA for. This limit will be a three-year limit because we have heard from ACPO that it is unlikely to be able to administer applications for extensions. Imposing a three-year limit will mean that we miss an opportunity, and once the data have gone, we have missed the opportunity for ever.

The Minister corrected me this morning regarding the conclusion of the Select Committee report on the DNA database. I went back and checked because I did not believe that I had read the conclusion incorrectly. I do not know what I have identified; however, the Minister read out the conclusion on the back page. I selected paragraph 37 from within the report. It says:

“Decisions on retention periods must balance public safety against individual privacy. The current situation of indefinite retention of the DNA profiles of those arrested but not convicted is impossible to defend in light of the judgment of the European Court of Human Rights and unacceptable in principle. However, given the complexity of the issues and the conflicting evidence about what would be an appropriate length of time for retention, we are unable to recommend a specific period other than to say that we would regard three years as the minimum length of time for which such profiles should be retained.”

So, when I was quoting from the report this morning and talking about a “minimum” length of time, I was quoting paragraph 37 from within the body of the report. I knew that the Minister would not be misleading the Committee, and nor was I. However, we have highlighted a little anomaly in the drafting of that report. So we are both right: there you go—we can all go out for a drink together later on.

In conclusion, this limit is a three-year limit, effectively, because we know that ACPO will not be able to administer any extensions. It would be useful if the Minister clarified proscribing and the role of the commissioner. He has partially done so—the commissioner will be involved in the initial application for retention but not any extension—but what will the commissioner’s role be outside national security?

What is a vulnerable victim? Is it a child, a woman who has been sexually assaulted or an elderly or disabled person? The Minister indicated that the commissioner will be involved at least as far as that in dealing with vulnerable individuals, but he has not given any indication beyond that. If we are to consider the Bill and which innocent people’s DNA will be retained, it would be useful to have some indication from the Minister of where we are at. I am sure he will want to respond.

Steven Baker (Conservative, Wycombe)

I support the clause. We have heard a great deal this afternoon about balance; in particular, the balance between evidence and principle has come out in hon. Members’ remarks. Consideration of that balance speaks very much to the nature of the clause. A lot of the talk has been about evidence, but it struck me that it has also been a conversation about counterfactuals. How many crimes will we not detect if we adopt the measure? I am not sure how one proves how many crimes have not been detected.

The hon. Member for Darlington complained that the measure might be political and not evidential, and she said it with considerable passion. For me, the hon. Lady ably demonstrated that we have adopted a kind of managerialism on the subject that is not driven by principle. It is a fear of consequences, perhaps, rather than what we stand for fundamentally.

If I remember correctly, the hon. Member for Glasgow North West mentioned the Scottish principle of “not proven”, which I would like to pick up. When the Minister talked about our commitment to innocent until proven guilty, which I welcome and fully support, I was reminded of the hon. Gentleman’s remarks. Pressure groups such as the Adam Smith Institute have written to us on this, and if we adopt the measure, in doing so we somehow pick up the Scottish idea of not proven. We charge someone, they are not convicted and yet we put them under the taint of suspicion by retaining their DNA. The hon. Lady mentioned criminologists and their notion that—forgive me if I misphrase this, I am only an engineer—the fundamental pointer to criminality is having been arrested.

Jenny Chapman (Labour, Darlington)

I am not a criminologist either, or a lawyer or an engineer; in fact, I was a housewife before I came here.

Michael Ellis (Conservative, Northampton North)

Nothing wrong with that.

Jenny Chapman (Labour, Darlington)

Thank you. The point I made was that arrests were an indicator. There are many indicators, but that is the most reliable one we have.

Steven Baker (Conservative, Wycombe)

I am most grateful to the hon. Lady for that clarification; nevertheless, I say that that principle stands in stark contrast to the notion of innocent until proven guilty.

The clause is a balance. It is already a balance between the principle of innocent until proven guilty and, knowing what the hon. Lady has told us, concern that we might not detect certain crimes. It is by no means a dogmatic application of principle, and I know that many will criticise it, but it heads in the right direction in what I could describe—without wishing to be overly pejorative—as a slightly neurotic atmosphere of concern. I believe that we should go further and be more principled. We should assert innocent until proven guilty. If we were to adopt the Scottish notion of not proven and have people living under the taint of suspicion simply because they had been arrested, I would like us to make that decision plainly and clearly, so that we know what we have adopted. Nevertheless, I shall support the Government.

John Robertson (Labour, Glasgow North West)

As someone who is also only an engineer, it is a pleasure to follow the hon. Gentleman. His concern about “not proven” is well founded. It solves a problem. It is not so much a case of, as he put it, somebody who is innocent being deemed guilty. In a lot of ways, it is the other way around. It is the case of somebody who is innocent being not proven and the person then always seen as guilty by a certain part of the population. There is a probability that he could be guilty and a probability that he could be innocent. It is something that I have always felt strongly about, and one of the few things that I think is better down south is that part of the law. Unfortunately, there is not much else. [ Laughter. ] I only say that in case someone from Scotland reads this. I have family back home and although I am not worried so much about others, I am worried about my family. To be serious for a second, I know no songs, so I shall just plod along with my speech as I see fit.

My hon. Friend the Member for Eltham mentioned public confidence, which is, more than anything else, what we are talking about: public confidence first in the law and, secondly in the Government. It does not matter whether I am a member of the Opposition or of the Government. The country is governed by the Government and, at the end of the day, no matter what we put together in the House, it will be the Government’s stamp on it; but we will all be associated with it one way or another, no matter whether we were in favour of it or against it. We have been elected to the House of Commons and we vote accordingly. Whether we win or lose a vote, we still have to stand by the result, so there has to be confidence in the Government, and I include everyone in that.

I do not believe there is confidence, because we are using flawed research. As my hon. Friend said when he talked about Professor Fraser, the evidence that we took in two days was much more expansive than Professor Fraser’s research and its conclusions. We have based the decision on a Scottish way of working that came from research that, although it might be disingenuous to call it flawed as a whole, is certainly flawed in relation to this Bill. There was not enough evidence to make decisions. The Government have to take an extra look at what they are doing, or we will end up with the not proven scenario to which the hon. Member for Wycombe referred.

The bodies who were not consulted included, of course, the police—the people who have to catch the criminals and help to get them convicted and into prison. If we do not talk to the people who actually have to deal with the law, how can we possibly have confidence in it? I believe that is the cornerstone of what my hon. Friend the Member for Eltham was saying and, to some extent, of what the Minister has been trying to say. I do not have confidence in the Bill. We cannot go forward with it knowing that we are using a set of rules and guidelines from somebody whose research did not cover all the bases, to use an American phrase.

I do not believe that all the bases were covered, so I honestly think that the Minister needs to look at the issue again. If he does not and the Bill goes to the House of Lords, I hope the Lords will look at the evidence and perhaps take some extra evidence from north of the border that will alleviate my concerns. We could then progress with a Bill that I at least had some confidence in, even though I might not be happy with it.

James Brokenshire (Conservative, Old Bexley and Sidcup)

We have had an impassioned debate. I respect the views expressed by Members from both sides of the Committee. This country claims a pioneering role in the utilisation of DNA technology, which is something that we can be proud of. Two engineers have contributed to the debate, and the hon. Member for Glasgow North West takes the issue of technology and its development extremely seriously. He and I have had a number of discussions outside the House on technology-related matters, so I know of his passion for such facets and factors. In taking that pioneering role, however, we have a special responsibility to ensure that it is used in a way that strikes the right balance on what is permissible when it comes to potential interference in people’s private lives. That is at the core of this afternoon’s debate.

The Leader of the Opposition was right when he said that

“we must always remember that British liberties were hard fought and hard won over hundreds of years. We should always take the greatest care in protecting them. And too often we seemed casual about them.”

I refer to that speech because the hon. Member for Eltham said that events took us in a particular direction or down a particular path. The Leader of the Opposition was right: we have to consider the basic principles and fundamentals of liberty when examining the decisions that we take. Perhaps belatedly, the Opposition recognise that they did not strike that balance correctly. I genuinely welcome that conversion. If we believe in liberty and its protection, we should welcome and celebrate all who recognise that fundamental aspect of our democratic rights.

It is in that context and on that balance that we took innocent until proven guilty as our fundamental starting point. The previous Government took the opposite view. They started at the other end, saying, “We want to protect everything; everything must be on a database, and we have to keep it there for ever and a day,” but without taking account of the question of liberty. In many ways, they were forced to change their mind as a consequence of various matters that arose, which is partly why we are debating the matter this afternoon.

One can analyse and re-analyse, but at some point one has to form a judgment. The Government have formed a judgment on the information and evidence afforded to us. It is a fair and reasonable judgment, based on analysis undertaken by the previous Government of experience in Scotland and the analysis in Professor Fraser’s report. Professor Fraser is an eminent specialist. Our conclusion is therefore reasonable and appropriate. Lord Bach, then at the Ministry of Justice, said that Professor Fraser had not uncovered

“any evidence to suggest that this approach to retention has caused any detriment to the detection of serious crime in Scotland.”

We heard such words from many Members in preceding debates on amendments to the clause. I do not want to go back over territory that we have already covered in great detail, but it is worth underlining those fundamental principles to which we all adhere.

Yes, I have made it clear that DNA is of course an important part of our criminal justice system, but it is only one part of it:

“DNA is only one of the tools”

that the police use

“to suggest to the Crown Prosecution Service that someone should be charged. In most circumstances, they will need corroborative evidence, or they will need to take other factors into account.”—[Official Report, 15 November 2006; Vol. 453, c. 126.]

Those are not my words but the words of the hon. Member for Gedling. I agree with him, but it is a complex scenario.

I previously highlighted the puncturing of the bubble inherent in the previous Government’s approach—that retaining ever more DNA would make us more effective and better protected, and that more crime would be solved. That clearly was not the experience, given the detection rates that we have seen.

Clive Efford (Labour, Eltham)

The Minister has said that on a number of occasions. In the early days of DNA processing, what he is saying is accurate but the 2010 Act did not take a blanket approach to the retention of DNA. It introduced a six-year limit. We have moved on from that position, and we are debating whether it is reasonable to set a three-year limit or a six-year limit, with the proviso that we assess its effectiveness.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I acknowledge that. I took part in discussions on the Crime and Security Bill during its passage through the House before the last general election, so I am familiar with the debate and a number of the points that we have been discussing. A number of comments made by the hon. Gentleman imply that in his view, we should be retaining evidence for a much longer period. If he is setting out the new Liberalism, or the change in approach of the previous Government and current Opposition—however one might like to characterise them—that view is not consistent. It is a question of whether we adhere to the fundamental liberties that were referred to by the Leader of the Opposition, and referred to this afternoon in the context of the judgments and decisions to be made.

Clive Efford (Labour, Eltham)

We do not suggest a length of time beyond six years. We do not propose six years because we think it is absolutely the right thing to do; as was said at the time of the 2010 Act, the provision should be reassessed with the information in place to determine whether it makes a significant difference to the detection and prevention of crime. If it does not, we can reduce the time period on the basis of empirical evidence derived from that process.

James Brokenshire (Conservative, Old Bexley and Sidcup)

There has been an inherent approach by the Labour party to delay, defer, not make a decision, try and keep things as they are and maintain the status quo. A fundamental judgment must be made, which is why we have looked at the evidence in detail. There is some consensus on the period of three years for under-18s who are not convicted, albeit that we would look at the matter in a different way and would not retain evidence from those who had simply been arrested for a minor crime. There was an indication that a three-year period was appropriate in those circumstances, but there is an inherent confusion in the Opposition’s standpoint.

I will address the fair point raised about vulnerability, which I spoke about during the debate this morning. I am sure the hon. Gentleman has read the comments of the Home Secretary on Second Reading on the reserve power that we seek to adopt. As I indicated, we intend to bring that forward in secondary legislation following further discussions with ACPO to deal with a number of the issues about vulnerability highlighted by the hon. Gentleman. Although the Home Secretary gave a good explanation of the issues, I have reflected on the hon. Gentleman’s request for further clarity, and I will consider his understandable concern for a level of certainty in the approach. I recognise the point and assure the hon. Gentleman that I will reflect on it carefully. I will provide the Committee and the public as a whole with clarity about the provisions relating to the potential retention of the DNA profiles of those who have been arrested but not charged, and I have set out the limited circumstances that will be used to address those issues with the oversight of the commissioner.

We have had a fair and detailed discussion and I do not intend to rehearse or go back over the detailed points that have already been examined. [Hon. Members: “ Go on.”] I appreciate that Opposition Members may wish to delay and defer debate on this issue, but fundamentally it is a question of judgment and there is a line to be drawn. Based on the information and the evidence, we believe our proposals strike a fair and proportionate balance between public protection and the right of the individual, and we feel strongly that the provisions are appropriate.

Clause 4

Clive Efford (Labour, Eltham)

We tabled amendments, which were taken in an earlier group, suggesting that the retention period for arrest should be six years, and three years for someone under the age of 16. We feel that arrest should be the very high threshold, as set out in the Select Committee report that we have referred to on many occasions, which requires biometric detail to be retained. We have concerns about the detection of serious crime and the way in which such information has assisted with that in the past.

Steve Wright was a rapist in Cambridge who was put in prison in 2006. Three years later his DNA was discovered at the scene of at least one of the rapes. Under the proposed arrangements, it is possible that he would not have been in the system, because his previous crime was a minor one, for theft. The Minister may have checked the detail and may correct me, but the theft from his place of work of which Steve Wright was convicted would not, under the proposed regime, have resulted in his details being retained.

Abdul Azad was, as I mentioned earlier, released without charge after being arrested for violent disorder, and it is not clear whether under the proposed system his DNA would be held. He committed another crime five months later, and the earlier arrest for a minor crime would not have shown up in the system. Without empirical evidence showing that the proposed system will not impede the police or prevent them from investigating or detecting serious crime, we should retain DNA in such circumstances and consider the future position in the light of a detailed analysis of how that assists the police in their detection of crime.

We know that when the Select Committee considered all the options, it gave a great deal of thought to the threshold for retaining DNA. It concluded that arrest was a reasonable position, but I am sure that the Minister will want to say in his response that the Committee was concerned that the threshold for arrest should be higher and that the power should not be abused in any way. We support that view.

The issue, again, is the balance that we strike. How much should we rely on the evidence of re-arrest rates, and on the fact that people who have been arrested and detained at a police station are more likely to be re-arrested than most people? Is the measure the most effective way of targeting and using the database? I return to the point that we should not restrict the ways in which we can protect the public and investigate crime—we need evidence to back that up. Until we have conducted the analysis, we should not move forward in the way that the Bill suggests.

The Minister asked in a previous discussion why there was a three-year retention period for young people when those between the ages of 18 and 19 show a high propensity for crime. The reason for that is the recognition that young people should not be stigmatised for youthful exuberance or whatever it may be. It was a response to past debates and discussions about dealing with youth crime and the retention of biometric material. It was a response to people from within Parliament and outside it. As it stands, the clause will restrict the police’s ability to use the DNA database, and it does so without the empirical evidence to back that up. I shall be interested to hear the Minister’s response.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I alluded to a general point in a previous debate, which I shall restate. According to the National Policing Improvement Agency:

“It is important to note that the availability of DNA match intelligence may not have been causal in solving the crime as detections are achieved through integrated criminal investigation and not by forensic science alone.”

Again, although I do not in any way seek to underestimate the importance of DNA, it is not on its own a panacea, nor can it be viewed in isolation. It is important to understand that context.

It is also worth pointing out to the hon. Gentleman that the clause should be read in conjunction with clause 5 and the subsequent clauses in that part. As he would see, when persons are convicted of a recordable offence, material may be retained indefinitely. It is a question, therefore, of which category people fall within. If someone has a conviction and is subsequently re-arrested and charged with a minor crime, clause 4 would apply. The general principle, however, is that DNA of people who are convicted of an offence will be retained indefinitely. I hope that that explanation will aid the hon. Gentleman and give clarity to his consideration of the clause.

It is worth saying that the clause delivers the second key protection of the Scottish model, in that it provides for the destruction of the DNA profile and fingerprints of anyone who has been arrested for or charged with but not subsequently convicted of a recordable offence that is not on the list of qualifying offences.

With clause 3, we have had a spirited debate on retention periods, and I recognise that, but as with retention periods there is a range of views on whether we should differentiate in retention policy between those arrested for serious offences and those arrested for more minor crimes.

For instance, in its report of March 2010, the Select Committee on Home Affairs in the previous Parliament concluded at paragraph 31:

“We...do not recommend that the Bill’s provisions...make a distinction between those arrested for major and minor crimes.”

That is what the Home Affairs Committee said on this aspect. However, the Joint Committee on Human Rights in the same Parliament, in its report of 23 February 2010, came to the opposite view, stating that it was appropriate. The European Court of Human Rights judgment on S. and Marper highlighted specifically the fact that

“material may be retained irrespective of the gravity of the offence with which the individual was originally suspected.”

The judgement was that the previous Government’s approach of not looking at the seriousness of the offence was relevant in the blanket and indiscriminate retention to which the Court was referring. The Court obviously looked favourably on the approach sought by the Scottish model.

We find ourselves arriving at a position on which there is no consensus. The Government’s view, given the evidence, is that our conclusion is right and appropriate. Furthermore, the previous Government, in the Crime and Security Act 2010, made a distinction in a number of ways between serious and minor crime. That distinction was accepted and acknowledged by the previous Government in their approach to the preceding Bill.

Mrs Chapman rose—

Clive Efford rose—

James Brokenshire (Conservative, Old Bexley and Sidcup)

I give way to the hon. Gentleman.

Clive Efford (Labour, Eltham)

I have forgotten the point that I was going to make.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I will wait for the hon. Gentleman to find his point and I give way to the hon. Lady.

Jenny Chapman (Labour, Darlington)

I will gladly make a point in lieu of my hon. Friend.

There is a distinction between minor and more serious crimes but, if we were to draw a Venn diagram of the people committing those crimes, we would find a great deal of overlap: almost entirely, people committing serious crimes would fit within the circle for people committing more minor offences. The temptation is to see them as separate groups of people, but that is not the case. It seems sensible to retain the DNA of people arrested for more minor offences.

James Brokenshire (Conservative, Old Bexley and Sidcup)

If we take a step back and return to some of the concerns about liberty that I was highlighting in a previous debate, we are saying clearly that those who are convicted—they have been to a court and found guilty of a crime—should have their DNA retained indefinitely, in essence reflecting the principle of innocent until proven guilty. In clause 4, we are saying that because our starting point is innocent until proven guilty, we are careful and cautious about how we approach those people who have never been convicted of a crime. That is why we are having the threshold of charging and are adding arrest protections.

Given what we have said about the significance of crimes of violence and of sexual offences, it is appropriate to identify them specifically, as we have through the Scottish model. That principle is reflected in the Bill and, indeed, was equally reflected in the 2010 Act.

Clive Efford (Labour, Eltham)

I am grateful to the Minister. I have found my train of thought now.

I am going back a bit, to the reference the Minister made to the European Court judgment. I think the point was made earlier by my hon. Friend the Member for Darlington. The first arrest or offence is no indication of what crime might be committed later on, but the Government are suggesting that what the person is arrested for in the first instance is some indication of what crime they might commit on a second occasion. However, some evidence shows that not to be accurate.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I do not want to go over ground that has been well trod already this afternoon, but the hazard rate analysis indicated a higher propensity for reoffending in those specific classes within a year following arrest. So some evidence points in the other direction to that which he was taking.

There is, again, a difference of approach embodied in the arguments we have had today. We believe that this is a fair and justified approach, taking account of the issues of liberty and freedom that we have discussed at length. This important provision giving effect to the Scottish system should stand part of the Bill.

Clause 6

Clive Efford (Labour, Eltham)

The clause deals with people convicted of a crime outside England and Wales. We support the clause; it is obviously sensible. In the light of some of the high-profile crimes that have happened internationally, such as sex tourism and others, could we clarify how the process will operate? Will the Minister tell us how it will work? How will it be monitored? How are the individuals involved monitored? Is there a process by which the Home Office is notified of someone convicted? I am at a loss to know whether there is a system in place for a Government to notify a Government that one of their citizens has been arraigned before their courts. Is there a traffic light system indicating that a Welsh or English national is in court overseas? If there is a process—a concordat that countries have signed up to—do all countries co-operate? Do we have concerns about any countries not co-operating?

What is the mechanism for notifying the Home Office that those people might return to the UK, so that we can approach them and ask for biometric details? I assume it is the Home Office that would be involved. It is okay to put this in the Bill, but if people just fly back home and nobody knows—as in some high-profile cases we have seen of people who molest and abuse children—we want to know. We could be lulled into a false sense of security if there is no way for the mechanism to work and flag up that somebody who has committed a serious crime has returned to the country. Who is responsible for overseeing that? Who is responsible for ensuring and checking that when someone returns to the country or is in court and convicted overseas, the appropriate authorities are notified? Is it the local police?

I note that the police are engaged in the process of collecting data from individuals who have been in prison and whose sentences predate the DNA database, and those gaps in the system are being filled. Is it the police who will go around to those people? Will they be notified where they are, or will they be stopped at the point of entry? How will that operate? What is the process if the person does not co-operate? If a person returns home, and the police become aware that they have returned home and that they have had a conviction abroad, what is the process for obtaining those data if the Bill decrees that the police are entitled to take DNA, and they refuse to co-operate?

We agree with the intent on this issue. It would be helpful if the Minister could answer those points and give some indication as to how the requirements in the clause will work in practice. It is obviously a sensible thing to do. I note that there is a smaller but similar clause in the 2010 Act, but I would be interested to hear from the Minister how will it operate in practice.

John Robertson (Labour, Glasgow North West)

I wonder whether I could ask a few other questions based on my hon. Friend’s contribution, but perhaps to go into more detail. Just one question off the top of my head—why is Northern Ireland not included? Northern Ireland appears with England and Wales in other parts of the Bill. I understand why Scotland is not included, but I wonder why Northern Ireland is not included here. I am sure that our colleague from the Democratic Unionist party, the hon. Member for Strangford, will want to know why they are not included. He probably knows—I do not know.

My hon. Friend the Member for Eltham talked about child abduction. We have great problems in locating children who have been stolen by a parent to another country. When a parent in such a case had DNA taken from them for some other reason—perhaps there was a minor case, one would assume, where a child had been taken with the husband before and the husband was arrested, fingerprinted or even had DNA taken from him—what would we do with that DNA? Would that DNA automatically have been destroyed, along with the fingerprints? Do we hold that kind of information in cases where parent abduction is a concern? For colleagues who have been involved in something like that, it is horrific for the parent who loses a child and who cannot get access to that child.

My follow-on question is: what is done to try and obtain DNA evidence from countries with whom we have access and contact? This may be topical, as it relates to Libya. There was a high-profile case of a child who was abducted from Scotland and ended up in Libya. What kind of contact would we have with the Libyans now in relation to that child abduction? Would such cases suddenly become more important and would there be follow-ups to that?

James Brokenshire (Conservative, Old Bexley and Sidcup)

I think in relation to the hon. Gentleman’s last point, that is obviously somewhat broader than the ambit of clause 5 and the international co-ordination in relation to child—

Martin Caton (Labour, Gower)

Minister, we are talking about clause 6.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I am delighted that we are making such good progress that we are on to clause 6 already. To correct myself, that obviously strays somewhat more broadly and widely than clause 6. However, the point that the hon. Gentleman made about child abduction and child trafficking cases is very pertinent and fits into the issues of missing children. We are very focused on strengthening and supporting that work through CEOP, which already has good links in relation to missing children. There is further work that can be undertaken to address what is a very pertinent and relevant issue.

The Bill does not currently address Northern Ireland-related matters because such matters are still to be addressed through the Northern Ireland Government. They are monitoring and looking at how the Bill progresses before reaching their own determinations in relation to certain aspects and the interconnection into our legislation here. There was no intention to deliberately omit it. It is more out of respect for some of the sensitivities in relationships with the Northern Ireland authorities.

John Robertson (Labour, Glasgow North West)

In connection with that, would Scotland come under a similar kind of connection? It has the separate law, obviously, but it is not a country outside the United Kingdom; therefore it should be brought in under the rules governing the Bill.

James Brokenshire (Conservative, Old Bexley and Sidcup)

Clearly, there are differences in law that apply, but I will certainly look into it to see whether there is any distinction that might need to be drawn. I will certainly reflect on the point that the hon. Gentleman has helpfully raised, but obviously this Bill speaks to England and Wales. That is why it has been phrased in the way that it has.

Clause 6 needs to be read in conjunction with section 3 of the Crime and Security Act 2010, which came into force on 7 March 2011. It enables the police to take DNA and/or fingerprints from anyone convicted outside England and Wales of an offence that would have constituted a qualifying offence if committed within England and Wales. I hope I can reassure the Committee that section 3 of the 2010 Act, and therefore clause 6 of the Bill, apply only to convictions for serious crimes overseas, which would constitute a qualifying offence if committed in England and Wales as per the provisions in the Bill.

New section 63I of the Police and Criminal Evidence Act 1984 inserted by this clause provides that DNA profiles and fingerprints that have been obtained under section 3 of the previous Act—the 2010 Act—on the basis of an overseas conviction can be retained indefinitely. This is the same as the position under clause 5 of the Bill if the conviction had been in England and Wales. We think that is an important protection. The hon. Member for Eltham has seen that as an important step forward, and we welcome his support.

The notifications are co-ordinated through the ACPO criminal records office, which is often referred to as ACRO. It will receive notifications from overseas authorities as the UK central authority for the exchange of criminal records. That may also trigger sex offender notifications and so on. In addition, there will be deportations at the end of prison sentences and other ways in which information may otherwise be picked up. This is a mechanism by which information is exchanged and which is therefore directly relevant in terms of the ability to take DNA as per the previous Bill and now the powers to retain as contained in clause 6 of this Bill. With that explanation, I hope that the clause will stand part of the Bill.

Clause 7

Clive Efford (Labour, Eltham)

We are making very steady progress through the Bill. Parts of it are similar to the previous Bill and Act. There are certain similarities in the clause. The previous Act differentiated between people aged 17 and over and people aged 16 and under. Did the Government consider differentiating between younger criminals in that way? There is a great deal of concern.

Back in my younger days, I used to be a youth worker. I was also senior play leader on an adventure playground for a time. I understand fully that young people change. They can become involved in criminal activities through their peer group for various reasons. If they do not get on at school and spend too much time away from school, they may get up to all sorts of things that perhaps they should not and find themselves, at an early age, coming to the attention of the law. It is important that we do not allow young people to slip too easily into a situation where they could end up with a criminal record or have their details retained indefinitely or for a long time. It is important that we ensure proper safeguards for young people. Was any consideration given to that?

On Second Reading, the hon. Member for Carshalton and Wallington made a good point about a 12-year-old who commits two minor offences finding that their details will be retained. That seems very young. I appreciate that it might have been in the 2010 Act as well, but it is still worth considering whether, at some point in our future consideration of the Bill, we should pay more attention to the effects on young people.

We have had numerous discussions about legislation introduced by the previous Government. Much of it has been criticised on youth justice grounds, particularly the use of antisocial behaviour orders, antisocial behaviour contracts, parental orders and so on. Some of that criticism is unjustified. Although I might be taking the libertarian route in terms of youth justice, I think that ASBOs have a bad press, some of it unjustified. They have been effective in preventing a lot of young people from going the step further that would have brought them to a criminal record or arrest. Steps can be taken to prevent someone from having to receive an ASBO. If one looks at the statistics—I know that the Minister pays attention to statistics; he has quoted a lot of them today—they work.

It is somewhat inevitable that the proportion of people who breach ASBOs will increase as they become more effectively targeted, because the people who get them are those who fail to be deterred by the measures introduced to prevent people from getting that far, such as antisocial behaviour contracts. I am sure that we have all seen that in our constituencies, including cases such as the one in mine where a young lad’s tag was “Asbo” because he had been given so many. He had been given every type of order on the statute books except a postal order, and he decided to adopt “Asbo” as his tag to thumb his nose at the authorities. We have all heard such stories, but we should not allow them to cloud our judgment on how we treat all young people. We should all remember that the young people who we see the most are those who cause problems within our communities. They stand out the most from the norm. The vast majority of young people are law-abiding.

It is a bit like the demonstration at the weekend. More than 400,000 marched perfectly peacefully in a carnival atmosphere, but a handful of people stole the news. We must always guard against—[Interruption.] The Liberals are pulling faces, but they would have been on that march in another set of circumstances. I will not digress, Mr Caton, because you will call me up for it. I will come back to the clause before us.

The issue is serious. It is about how we approach and treat young people. We have to consider it carefully, because we do not want it for very minor and simple crime. Let us face it—this is not always the case, and I would not want to criticise the police—at times an over-zealous or exasperated police officer might decide that arrest is appropriate in a particular case and a young person, for very minor offences, finds themselves getting two strikes and they’re out. We need to guard against that and carefully consider the contents of the Bill.

Have the Government given any consideration to stepped arrangements for age and the length of time that data will be retained for people under the age of 18? Are such arrangements under review with a view to introducing them?

I was quite struck by the comment that the hon. Member for Carshalton and Wallington made on Second Reading. He said that a young person who commits two minor crimes may find their DNA being retained for a long period. I would like the Minister to consider that, because young people may easily be led to make severe mistakes. We would not want to legislate in a way that has a damaging effect on such young people for life.

Would the Minister care to comment on those points?

John Robertson (Labour, Glasgow North West)

I want to add a couple of points to those raised by my hon. Friend. Government Members know that the holding of DNA is not a problem for me, but I want to address the spirit of the Bill and where I think the Government are trying to go with it. At a time when we are trying to draw back from giving people custodial sentences, five years for a young person is quite a long time. I should have thought that such a sentence, particularly for a first offence, would be for a fairly substantive crime.

Also, depending on the judge, one person might receive a five-year sentence and somebody else might receive a four-year sentence for exactly the same crime. One person’s DNA will disappear five years after the sentence is finished, but the DNA of the person who got the extra year is kept indefinitely. That does not strike me as being fair—not for the same crime. Will the Minister comment on the differences between sentence time and the crime committed? Should we be looking not at the time of the sentence, but at the sentences themselves? If the sentence was for grievous bodily harm or for carrying a weapon of some description with intent to use it, people would expect a fairly high tariff of sentence. The indefinite holding of DNA might, therefore, be in order. I cannot imagine anything less than that getting a five-year sentence for a first offence. Even if the person was approaching his 18th birthday, I still doubt that they would get a five-year sentence for breaking and entering or a crime of that sort.

Should we not look at the actual crimes that these young people are committing and make the sentence in relation to DNA, as it were, fit the crime rather than just bringing in a five-year time limit, where sentences for the same crime could range from five years to less than five years, depending on the person who was deliberating at the time?

James Brokenshire (Conservative, Old Bexley and Sidcup)

This is quite an interesting debate, because the treatment of biometric material taken from juveniles poses some interesting questions and dichotomies.

On the one hand, as the European Court of Human Rights pointed out in S. and Marper, account must be taken of juveniles’

“special situation and the importance of their development and integration in society.”

However, studies of criminological literature show us that the peak period of offending behaviour is between the ages of 12 and 19. Therefore, quite a dichotomy is being thrown up by potentially conflicting aspects: how to treat young people fairly and appropriately, recognising a number of points that Opposition Members have highlighted and the point that my hon. Friend the Member for Carshalton and Wallington raised on Second Reading; and the view that the period between 12 and 19 is the peak period of offending.

We discussed the retention period for unconvicted juveniles when we were considering clauses 3 and 4. Our proposals are that the retention period for unconvicted juveniles should be the same as for adults, namely three years for those charged with serious crimes, and that there should be no retention of data for those suspected of minor crimes. As our proposals only permit retention from unconvicted individuals for short periods and in specific circumstances, we believe that they are just as appropriate for juveniles as for adults.

Clause 7 makes special provision for convicted juveniles. By virtue of clause 18, that group includes those who have accepted a reprimand or warning under the Crime and Disorder Act 1998. We propose that juveniles who receive a warning, are reprimanded or convicted in a court and sentenced to a community punishment should, for a first minor offence, have their DNA and fingerprints retained for five years from the date that the material is taken.

Clause 7 also provides for juveniles who on first conviction in a court for a minor offence receive a sentence of immediate youth custody of up to five years to have their DNA profile and fingerprints retained for five years from the end of that sentence. Juveniles who are convicted of a qualifying offence, or who receive more than five years’ imprisonment for a non-qualifying offence, would have their DNA and fingerprints retained indefinitely, which would reflect the serious nature of the offence for which they have been convicted.

I genuinely do hear the points that have been made by hon. Members this afternoon. These proposals are intended to give young people “a second chance” and to allow them to sort themselves out after a brush with the law at a young age. The proposals are underpinned by a provision to retain material indefinitely following a second warning, reprimand or conviction.

There is a delicate and difficult balance to be struck here. We considered the proposals that were in the 2010 Bill. In essence, that Bill treated 16 and 17-year-olds differently from younger children. We felt that it was appropriate to consider whether someone was a juvenile or an adult and we felt that the dividing line should be at 18. Therefore, that was a reflection on some of the consideration of the 2010 Bill.

Clive Efford (Labour, Eltham)

There is a big difference between 11 and 12-year-olds and someone who is 18. An enormous amount of growing up takes place in the period between 11 or 12 and 18. It seems wrong to treat somebody of 11 or 12 the same as someone who is 17 and approaching 18.

The rest of the debate is in Hansard.