Protection of Freedoms Bill

Public Bill Committee, 5 April 2011.

Clause 8

Clive Efford (Labour, Eltham)

I beg to move amendment 52, in clause 8, page 7, line 20, after ‘person’, insert ‘over the age of 16’.

Gary Streeter (Conservative, South West Devon)

With this it will be convenient to discuss amendment 53, in clause 8, page 7, line 20, after ‘is’, insert ‘arrested and then’.

Clive Efford (Labour, Eltham)

I am sure that it is a pleasure for everyone to be back in the Committee. We have been enjoying spring weather up until today. When I came out of my door this morning it looked like a nice spring day, but by the time I got off the train at the other end, it was pouring down with rain. However, I am sure that nothing can dampen the spirits of those on the Committee who are looking forward to doing their upmost to hold the Government to account on their plans in the Bill. I am looking forward to assisting the Minister in getting things right, because he is a nice fellow and I care for him. I want to ensure that he does not have to come back to the House all Lansley-like in a few weeks’ time and make a statement about why it has all gone wrong and why we need to consult and listen. Let us save him from himself and do the job properly.

Amendments 52 and 53 relate to our concerns about the penalty notices. One concern is that it will lower the threshold at which people—particularly the young—could come into contact with the criminal justice system and have their personal details retained. Amendment 52 would set an age limit of 16, so we would not expect DNA to be retained following the issuing of a penalty notice to those under 16, because, as the Home Affairs Committee indicated in its deliberations, arrests should be the threshold. There are powers, as we have discussed under other clauses, where DNA can be taken if an arrest is made, and if the crime is serious enough DNA can be retained.

With amendments 52 and 53 we are saying, therefore, that the provision should not apply to those under 16 and that arrest should be the threshold that denotes whether someone should have their DNA or fingerprints taken and retained, depending on the seriousness of the crime. The Bill allows for that to be done on the issuing of a penalty notice. Throughout the Bill, it is suggested that there should be some form of check and balance through the justice system. There are, for instances, references to magistrates courts for applications to extend retention of DNA profiles, but someone could have their DNA taken and retained simply following the issuing of a penalty notice by a police officer.

We feel that some checks and balances are necessary. The amendments provide them, and we would welcome the Minister’s comments on that.

James Brokenshire (Conservative, Old Bexley and Sidcup)

Welcome back to the Chair for the continuation of our consideration of the Bill, Mr Streeter. We had a brief sojourn on to the Floor of the House for the Police Reform and Social Responsibility Bill, in which I know that other members of the Committee were similarly engaged. The hon. Member for Eltham mentioned health, and despite some of the coughing and spluttering that I have just heard, I was hoping that his health had improved after last Tuesday, when, unfortunately, some of his personal health challenges came to the fore. In the spirit of camaraderie, I wish him well, and I hope that he has a speedy recovery from his cough.

I want to turn back to clause 8. We had a wide-ranging debate last week on retention periods. I need to understand better what the hon. Gentleman seeks to distinguish, and how the Opposition have moved on from their position on the Crime and Security Act 2010, where the distinction was made simply on arrest, not on the issuing of a fixed penalty ticket or penalty notice for disorder for under-16s. Has there been further change on the approach that they may take? Perhaps we will discover that when the hon. Gentleman responds to the debate.

Clause 8 does not give the police a new right to take DNA from someone on the issuance of a PND. As we explained last week, it applies when someone has been arrested under the Police and Criminal Evidence Act and DNA is taken under PACE. This then deals with the retention arrangements that operate thereby. In those circumstances, we believe that a two-year retention period is appropriate, reflecting in many ways the situation in Scotland.

The hon. Gentleman has sought to differentiate 16-year-olds. In essence, he is saying that someone has to be over 16 for these provisions to bite. I do not know whether he seeks to make a broader point about youth penalty notices for disorder, which were introduced by the previous Labour Government, albeit not with great alacrity, as their use has not been fully adopted across all police forces. Perhaps there has been some rethinking. We believe that, where a penalty notice for disorder has been issued, it is appropriate to have a short retention period, to reflect the fact that for a PND to have been issued, some criminality would have occurred. Of course, it is a different type of disposal from a caution or some other court-based sanction. We believe a two-year retention period appropriate, given some of the cases that have emerged.

Equally, the hon. Gentleman will be aware of the peak age of offending about which we talked last week. By excluding the issuance of fixed penalty tickets, he is ignoring the evidence in the hazard rate analysis report, which he pointed to, where the issues of youth offending are highlighted, and, more generally, other statistics on youth crime.

We believe the measure is proportionate—that a two-year period is reasonable. Looking at the evidence on 15-year-olds who may commit crime, one can see why it would be appropriate to retain. There are other provisions and protections in the Bill relating to the treatment of young people. The hon. Gentleman’s Government when in power recognised the case for having a separate arrangement for dealing with retention for under-18s. Two years is a limited period, which we believe is appropriate, and hope accordingly that the hon. Gentleman will withdraw his amendments.

Clive Efford (Labour, Eltham)

The issue about 16-year-olds is consistent with the 2010 Act. There was a reference to separate arrangements for under-16s. I cannot find any reference—and will be corrected if I am wrong—in the 2010 Act to specific treatment of people who have been issued with penalty notices.

James Brokenshire (Conservative, Old Bexley and Sidcup)

If I may assist the hon. Gentleman, there was no reference to penalty notices because the previous Government took the view that simply on arrest retention should follow for the period thereafter. The point that we seek to distinguish here is that the line of retention should, in general terms, be on the issue of charge. Obviously, we had the debate last week and that is possibly why he cannot find the reference in the previous Bill.

Clive Efford (Labour, Eltham)

Exactly. Arrest was the measure under the previous arrangements. We see an element of inconsistency in what the Government seek to introduce. The Bill refers to magistrates courts overseeing the use of that system. People have recourse to a magistrates court if they are dissatisfied that their details have been retained. Similarly, if a police officer wants to extend retention he has to apply to a magistrates court. In the use of penalty charge notices, however, they are just issued as a summary conviction by police officers and there is no core procedure. To introduce that seems to be inconsistent with what the Bill aims to achieve. There is a need for a special arrangement for under-16s that is consistent with the previous Act, and I would like to press the amendment to a Division.

Clive Efford (Labour, Eltham)

I beg to move amendment 56, in clause 8, page 7, line 26, leave out ‘2’ and insert ‘3’.

Gary Streeter (Conservative, South West Devon)

With this it will be convenient to discuss amendment 57, in clause 8, page 7, line 28, leave out ‘2’ and insert ‘3’.

Clive Efford (Labour, Eltham)

The amendment seeks to replace two years with three years, first and foremost to find out from the Minister: why two years? We have had long debates on the issue about whether the length of retention should be three years or six years, and where the evidence base is for supporting that decision, so where has two years come from? What is the rationale behind two years? Is it because it is only a penalty notice, so the length of retention should be shortened?

The DNA database is a device for the detection and investigation of crime. Profiles are retained on the database to assist the police in that endeavour. The rationale is that the fact that someone has been arrested is an indication of a likelihood that they will reoffend—or be rearrested, I should say—within a period of time, and that there is a higher rate of offending for those who have a previous arrest record than for the general public. That is the rationale and we have had several debates on that. If someone is arrested, albeit for a penalty charge notice, why is it that two years applies, not three? What is the evidence behind the Government’s conclusion that two years is an appropriate length of time in relation to penalty notices and not three years as applies in other cases? The Minister indicated a moment ago that the previous arrangement under the 2010 Act was that on arrest the six-year period applied. That was a consistent approach.

Another issue of concern emerging from the Bill, as was mentioned by Mr Chris Sims when he gave evidence on behalf of ACPO, is that the system is very complex. We have several tiers of retention: those who have their DNA retained for three years, those who will now have it retained for two years, those who will have it retained for five years with an extension possible and young people under the age of 18 who will have it retained for the length of their sentence plus an extra period. What is emerging is a complex system for the police to manage.

Steven Baker (Conservative, Wycombe)

I am a software engineer and although the hon. Gentleman is right to say that there is some complexity, in terms of a software programming problem, I am afraid it is trivial. I really would not worry about that complexity.

Mark Tami (Labour, Alyn and Deeside)

That’s all right then.

Clive Efford (Labour, Eltham)

Let us dispense with the magistrates courts then, so we can let some pointy-headed computer engineer decide it all. [ Interruption. ]

Gary Streeter (Conservative, South West Devon)

Order.

Clive Efford (Labour, Eltham)

If the police are to manage the system, the implication is that they will manage it on a case-by-case basis. They will have to decide who constitutes a danger and whose DNA they will have to retain for a longer period. We have already heard that there is effectively a three-year retention period in the Bill, yet that would be a two-year retention period because the police do not have the capacity to carry out the reviews that are intended in the Bill—computer software or no computer software. That is the concern about the complexity of the system that we are being asked to approve. We would like to know how the Government came to the conclusion that two years is appropriate in relation to penalty charge notices.

James Brokenshire (Conservative, Old Bexley and Sidcup)

Obviously, as the hon. Gentleman has explained, the amendments would increase the retention period from two to three years for DNA profiles taken following arrest where a fixed penalty notice—a penalty notice for disorder—has been issued. I suppose he is challenging us on why there is a different regime here. I point him to the comments that he made during the previous mini-debate we just had on the status of a penalty notice for disorder and the summary nature. Obviously, in the Bill we recognise—this was our starting point—the essence of innocent until proven guilty and the need to put the guilty on the national DNA database. We have sought to be pragmatic about evidence on that.

On penalty notices for disorder, it is worth highlighting that the same arrangements apply in Scotland by virtue of section 79 of the Criminal Justice and Licensing (Scotland) Act 2010, under which DNA can be retained for two years from those arrested for a recordable offence and subsequently given a fixed penalty notice under the Antisocial Behaviour etc. (Scotland) Act 2004. For those not familiar with penalty notices for disorder, they were introduced by part 1 of the Criminal Justice and Police Act 2001. According to the explanatory notes to that Act, they are intended to be

“a simple and swift way of addressing a range of low-level anti-social offending associated with disorderly conduct.”

The provisions of the 2001 Act

“allow the police to issue penalty notices on the spot or at a police station for a range of disorder offences. These notices may be issued where there is reason to believe an offence has been committed, and where a penalty notice appears to be an appropriate response.”

Although penalty notices

“discharge any liability to conviction of the offence by payment of a fixed penalty,”

the issuing of such a penalty notice none the less indicates that the constable believes a criminal offence has been committed, albeit the person receiving the penalty notice does not admit guilt in such circumstances.

So the penalty notice for disorder has a different status, which is why it is appropriate to take a different approach that recognises the different status of the PND as a summary disposal. That reflects some of the points made by the hon. Gentleman when he spoke to the previous group of amendments, and it is why a two-year period is appropriate.

Again, we are not taking the general starting point in relation to arrest, which was the starting point of the previous Government’s Bill. To seek to draw the same conclusion from both would be to make a false comparison. We are clearly saying that some form of sanction has been imposed as a consequence of the determination of the constable in issuing the penalty notice. That falls short of a conviction, which would otherwise see the person’s DNA being retained indefinitely. That is why we believe it is appropriate to have a somewhat different regime in respect of fixed penalty notices.

I tend to concur with the point made by my hon. Friend the Member for Wycombe: in such circumstances it is a question of drawing up an appropriate algorithm for the relevant computer program to monitor the DNA database, because it is a two-year retention period from the issue of the fixed penalty ticket. Although the hon. Member for Eltham may have some reasonable points on the exercise of discretion, in fairness, as we have seen in other aspects of the Bill, some of those arguments about complexity perhaps do not arise in this case because we are simply talking about a fixed period of time.

Clive Efford (Labour, Eltham)

I am still not clear why the Government have chosen two years. They seem to be saying, “Well, it’s not quite the same as other situations, so we’ll do it for a little bit less.” The Scotland argument comes in again, and it will be interesting to see whether in other areas of legislation the Government are so keen to pray Scotland in aid.

My problem with what the Government are doing—this has bedevilled the entire debate not only on this Bill, but on previous occasions when DNA profiles and samples have been discussed—is that being on the national DNA database is seen as a punishment and as part of the punishment process. This provision links to that and suggests that it is the case. But DNA is not part of the judicial process, and it is not something that is ruled on by courts. In effect it is similar to someone being arrested by the police for a crime of which they are perfectly innocent. Such an arrest is currently recorded and the police will know that that person has been arrested if they are subsequently rearrested. As part of a process, the DNA profile is treated in exactly the same way.

James Brokenshire (Conservative, Old Bexley and Sidcup)

The hon. Gentleman makes the point that in some way this is not connected to issues of innocence and guilt. Therein lies the fundamental difference in our approach to adopting the measures within the Bill. Why, therefore, is a distinction drawn in the Crime and Security Act 2010 between conviction and non-conviction? In the hon. Gentleman’s view for non-conviction, for arrest, there should be a six-year retention, yet for those who are convicted it should be indefinite retention. If he is saying there is no link, why was there a link in the previous Bill?

Clive Efford (Labour, Eltham)

My point is not about the link. My point goes back to our previous arguments about rearrest and the period between rearrest and an initial arrest for which a person is not charged or convicted of any crime. There is a clear indication that there is a higher rate of rearrest among that section of the population than there is among the general public.

That argument aside, we are discussing the retention of the DNA of people who have been issued with a penalty notice. To suggest that somehow it is a lesser form of conviction and therefore that should be reflected in the retention of the DNA, links the DNA to the type of crime and so suggests that the retention of the DNA profile is somehow a punishment. It is not. It is a device that the police use, just like their other records, for the investigation and detection of crime. It is not part of the system of punishment for people who are convicted of any crimes.

Michael Ellis (Conservative, Northampton North)

Would the hon. Gentleman accept that a fixed penalty notice is a lesser mechanism for dealing with matters than a conviction? Would he also accept that the European Court of Human Rights, which is not an organisation that I regularly quote, has talked about proportionality in dealing with matters such as these? Therefore would he not agree that it is perfectly logical that where there is summary justice by way of a fixed penalty notice, it is only appropriate that the profile be retained on the database for a lesser period of time?

Clive Efford (Labour, Eltham)

I do not accept that. Of course I accept that the Court talked about proportionality. That is why the blanket approach to retention was indiscriminate and not acceptable. That is clearly accepted by everybody and we start from that point. Again, the question is whether the database is seen as a tool for the police and therefore the retention period is there for that purpose, or whether the length of time that a profile should be retained is regarded as an addition to the punishment that is meted out. I think we need to keep those clearly separate and keep the system simple. I do not accept that two years is the appropriate time to retain the DNA. I am concerned that the Government are linking the DNA profile to the type of punishment. That is an error.

Clive Efford (Labour, Eltham)

I do not need to go over the arguments we have just had on the amendment. We are not happy about penalty notices being used as a means by which DNA material can be retained. Provisions in the Bill and in various other pieces of legislation permit the retention of DNA material or fingerprints of people who are of concern to the police but who have not been convicted of or cautioned for an offence. We therefore do not see that it is necessary to introduce this link to penalty charge notices, albeit for disorder. If the offence is serious enough, there are existing provisions. Our concern is that people may have their material retained on the say-so of a police officer issuing a penalty charge notice, and the possibility that young people may find themselves in such a situation is very worrying.

There does not seem to be any rationale for the period of two years. What concerns us about the Minister’s response is the idea that the two-year period somehow reflects the level of the crime; the Government seem to see retention of DNA profiles and fingerprints as part of the punishment process, rather than linked to its being a device for the police to aid future investigation and detection of crime, particularly of serious violent and sexual crime. Going down the slippery slope of linking the length of time for which material is retained to the type of conviction opens up that area of debate. Quite rightly, the public will be very concerned about the stigmatisation of people—particularly those who are innocent—who are on the database and have their DNA retained. Because of the link with punishment, it is of great concern.

In the past, the material retained was a matter for the person arrested, the police, and anybody else who might be aware that the person had been arrested, because it was assumed that material would be retained on arrest. Now we are introducing different regimes, and being on the DNA database suggests an element of guilt, which is a worrying step. Linking two years to the type of conviction—in this case, a penalty charge notice—opens up that area of debate. It will be a matter of concern in future for the public, and I think that the Government are making a serious error.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I think that the public will be more concerned about the previous Government’s indiscriminate retention regime, which has existed until now, and the fact that information was taken on arrest, without innocence or guilt being part of it. The hon. Gentleman cannot have it both ways, frankly. If somebody is arrested and issued with a penalty notice for disorder, he implies that it is a terrible thing that there should be a retention period. His Government, however, would have retained the information for six years anyway, straight from arrest. The issue would not have arisen and they would have retained the information for a much longer period. I think that is what the public will be most concerned about.

What we are proposing is appropriate, and the argument, again, returns to the fundamental divide between the approaches of Government and Labour Members. Their starting point would be to seek to retain DNA for ever and a day, if they had the chance. That is what the previous Government wanted to do. Our starting point is to view people as innocent until proven guilty, which is why we think that our proposed regime is proportionate. Clearly, there is a point of difference, which I acknowledge and accept. However, I say to the hon. Gentleman that people view retention as linked to guilt, regardless of whether it comes from arrest. From my postbag and from the letters that I sign as a Minister, I know that people object to having their DNA retained following arrest, simply on the say-so of a constable. People believe that it is a mark on their character. Although the hon. Gentleman may not accept that, and while he may see the provision as trying to create a link and somehow creating an artificial divide, I have to tell him that the link is there. That is why the European Court made its judgment, why the Information Commissioner sees the issue as significant, and why a proportionate regime needs to be put in place.

It is an issue of difference. Given the extended debates that we have had previously, I will not detain the Committee further.

Clause 9

Clive Efford (Labour, Eltham)

I beg to move amendment 58, in clause 9, page 8, line 3, leave out ‘2’ and insert ‘3’.

Gary Streeter (Conservative, South West Devon)

With this it will be convenient to discuss the following:

Amendment 74, in schedule 1, page 85, line 46, leave out ‘3’ and insert ‘6’.

Amendment 75, in schedule 1, page 86, line 1, leave out ‘3’ and insert ‘6’.

Clive Efford (Labour, Eltham)

This is a probing amendment, and it relates to arguments similar to those that we have already made regarding the length of time for which material can be retained. I am sorry if I have overlooked something obvious, but will the Minister clarify this point for me? I am assuming that the initial retention period for anyone who has their material or profile retained under national security provisions is three years, and that clause 9 refers to the extension period for which the chief officer will have to apply to the biometric commissioner. I assume that that is the case, but the amendment seeks clarification on that point.

Amendments 74 and 75 would change the number of years specified in schedule 1 from three to six, to seek clarification about what that part of the schedule refers to. Why three years? Why not six? Are we again referring to extensions of the period of retention?

James Brokenshire (Conservative, Old Bexley and Sidcup)

In relation to the hon. Gentleman’s final point, a difference exists over whether the initial retention period should be six years or three years. We have rehearsed that, and I accept that in calling for a six-year period the hon. Gentleman is consistent with the position that was adopted under the 2010 Act.

On the question of two years and the national security determination, I am pleased to note that the hon. Gentleman said that this is a probing amendment. I was concerned that he was changing his position and already turning his back on his leader’s liberalism in respect of individual rights. I note that it is a probing amendment, but during our deliberations on the Bill we shall see the hon. Gentleman’s view on liberalism in respect of individual rights.

The police and security services have consistently supported a two-year maximum retention period for material that is retained for a national security purpose. That provides a clear timetable for regular review and, as proposed by the Bill, for independent oversight. I point the hon. Gentleman to new section 64ZK of the Police and Criminal Evidence Act 1984, which would have been inserted by section 14 of the 2010 Act. It states:

“A determination under subsection (1) has effect for a maximum of 2 years beginning with the date on which the material would otherwise be required to be destroyed, but a determination may be renewed.”

In essence, the two-year assessment of whether materials should be retained for national security purposes is consistent with the approach taken in the Crime and Security Act 2010. We will come to oversight provisions later in the Bill, but we believe that a two-year re-examination is the right period for examination and analysis to confirm that retention is appropriate. It also ensures that new information or assessments can be undertaken on a regular basis. Two years was considered an appropriate period in respect of the 2010 Act, with the support of the police and security services. We believe that it is an appropriate period for that regular update. Given the probing nature of the amendment, I hope that the hon. Gentleman will be minded to withdraw it on the basis of the information that I have provided.

Clive Efford (Labour, Eltham)

I am grateful to the Minister for that clarification, and accordingly I beg to ask leave to withdraw the amendment.

Clause 10

Clive Efford (Labour, Eltham)

I beg to move amendment 59, in clause 10, page 8, line 11, after ‘with the’, insert ‘written’.

Gary Streeter (Conservative, South West Devon)

With this it will be convenient to discuss amendment 60, in clause 10, page 8, line 13, after ‘the’, insert ‘written’.

Clive Efford (Labour, Eltham)

The amendments introduce an element of check and balance in the process for people giving material voluntarily. Later clauses refer to consent, and consent given in writing, but it is not clear how the process is dealt with. When material is given voluntarily, I assume it will be for a process of elimination in an investigation. What would happen if somebody withdrew that permission during the course of an investigation? What process would they go through in order to say that they no longer wished their material be retained and what information would they get when it was volunteered? Would they be asked to fill in a form? What will be the police guidance so that people are aware of their rights? What should they do if they become concerned? Who should they contact, and what process would they go through? If people are to be encouraged to volunteer and feel confident about it, there must be some checks and balances to give them the confidence to assist the police. If they are suspicious about the process in any way it might deter them from participating and could create difficulties for the police.

The Bill does not seem to indicate the process that people will sign up to and how it will be managed, and what their rights are if they wish to request that their information be destroyed. Nor does it indicate how, at the end of an inquiry of which they are no longer a subject, they will be informed that their material has been destroyed and that all relevant documentation that identifies them as associated with a DNA profile has been removed.

There are provisions in other clauses regarding the destruction of materials and the removal of information from the database. This is a probing amendment to clarify where the process of volunteering fits with those other provisions. We want to find out exactly how the public will be given confidence in the process in order to encourage them to help the police, and so that they fully understand what will happen to their material and how it will be removed once it is no longer required.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I thank the hon. Gentleman for his comments on the issue of material given voluntarily. Clause 10 inserts new section 63M into the Police and Criminal Evidence Act 1984, which makes it clear that material given voluntarily in connection with an investigation may only be retained until it has fulfilled the purpose for which it was taken—that is, until it has been compared with the sample taken at the scene of the crime being investigated. In other words, it is for that limited extent and limited period.

Amendments 59 and 60 seek to amend subsection (1) of new section 63M of the Police and Criminal Evidence Act so as to provide that the fingerprints and DNA given voluntarily must be given with the written consent of the person concerned. However, given that Clause 10 deals with retention rather than taking, it is unclear what this amendment would do, although I appreciate the probing nature of the amendment and the manner in which the hon. Gentleman sought to highlight it.

The hon. Gentleman’s points would be unnecessary in any event. PACE code of practice D deals with the taking of biometric material in connection with the investigation of an offence and annex F to that code deals specifically with the taking of material with consent. Annex F makes it clear that consent must be given in writing; it provides sample wordings for such consent and also requires that on the rare occasions where volunteer material is intended to be kept beyond the particular investigation, a separate signed consent must be obtained for that as well.

So, although the hon. Gentleman has made a fair point, we consider that those points have been adequately dealt with pursuant to code of practice D under the Police and Criminal Evidence Act, reflecting the relevance of the points that he has highlighted.

Clive Efford (Labour, Eltham)

I am grateful to the Minister for that reply. I accept his points and the guidance he has indicated. It is important because, as we have discussed, there is public concern about how details are treated and how profiles are retained. People are rightly cautious about that. An important part of the police’s weaponry against crime is public participation and assistance—people coming forward and giving evidence. In this case it means people coming forward and giving personal biometric data that allows them to be eliminated from suspicion of having committed a crime and assists the police in detection of crime. It is important that people have confidence in that process. With all the best guidance in the world, information giving people confidence at the early stage of that process is important. Having said that, I beg to ask leave to withdraw the amendment.

Steven Baker (Conservative, Wycombe)

I beg to move amendment 45, in clause 10, page 8, line 16, at end insert ‘and must in any event be destroyed within one year from the date it was taken.’.

Gary Streeter (Conservative, South West Devon)

With this it will be convenient to discuss amendment 47, in schedule 1, page 92, line 19, leave out from ‘(2))’ to end of line 21.

Steven Baker (Conservative, Wycombe)

I offer amendment 45 to the Committee and the Government by way of tidying up. As we have discussed, clause 10 relates to material given voluntarily. We have in mind someone who perhaps wishes to help the police with their inquiries and eliminate themselves from those inquiries. I am conscious of the Minister’s remarks on amendments 59 and 60, in which he explained that the sense of the Bill is to remove a profile from the database as soon as possible, as soon as a person has been eliminated from inquiries. With that in mind, I offer the amendment to tauten subsection (2) and to say simply that, in any event, the profile must be destroyed within one year.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I thank the hon. Gentleman for giving way. I wonder, however, whether he picked up on what the Minister said, which was that there are certain circumstances in which, even after the initial investigation, there is retention. It may therefore be that that would stand in the way of his proposal to keep profiles for a year.

Steven Baker (Conservative, Wycombe)

I am most grateful to my hon. Friend. Does he support my proposal that we should destroy profiles after one year?

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I am happy to intervene again. I am suggesting that the hon. Gentleman may need to hear from the Minister the circumstances in which, after the initial investigation, DNA will be retained for a purpose that the Minister did not spell out. I am sure that, when the Minister responds to the debate, he may do so. That may mean that DNA has to be retained beyond the one-year period that the hon. Gentleman refers to in his amendment.

Steven Baker (Conservative, Wycombe)

I am most grateful to my hon. Friend. I must admit that, in my own mind, I imagined that if somebody had been arrested, charged or convicted, then other provisions in the Bill would apply. The amendment, therefore, just speaks to the specific point of material being given voluntarily; in particular, to help someone eliminate themselves from inquiries. If proceedings were in progress, then another section of the Bill would apply.

The driver for me here is that members of the public should have the confidence to help the police with inquiries and have themselves eliminated from those inquiries, knowing that their DNA profile would be retained for the absolute minimum period.

My arguments relating to amendment 47 are similar; it too is intended to tidy up the Bill, which, as phrased, is rather open-ended. The purpose of taking DNA was for transmission to the International Criminal Court. Therefore, we should eliminate any vagueness and open-endedness by removing subsection (2)(b) to ensure that any material is destroyed before the end of the six-month period. Further to my hon. Friend’s remarks, perhaps there are other circumstances that we have not imagined and which the Minister might wish to address.

I offer amendments 45 and 47 to tidy up and close some open-endedness in the Bill. I hope that the Government will accept the amendments.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I thank my hon. Friend for highlighting those issues on the retention of material taken from volunteers and those sampled at the request of the International Criminal Court. First, clause 10 provides that material taken from volunteers may be held only for as long as is necessary to fulfil the purpose for which it was taken, as we have debated in the previous mini-debate. Secondly, clause 11 provides that material held with consent may only be retained for as long as that consent remains in place. The interrelationship between clause 10 and clause 11 is relevant on this point and, I hope, provides context.

While the current legal position on volunteer material is that consent, once given, cannot be withdrawn, I understand that the national DNA database strategy board, which we will no doubt discuss further, has already removed all volunteer profiles from the national database and is not accepting any further volunteer profiles on to the database, except when a volunteer makes a specific request to do so. Volunteer profiles are now just held locally by the relevant police force and checked against the crime scene sample in question. That question of consent and knowledge—knowing why the consent provided, given the current framework, does not allow for an opt-out—is why the provisions in the Bill make that clear. No doubt we will discuss the issue of withdrawal of consent in relation to the next group of amendments.

This is an issue that we are seeking to explore further with the police and Crown Prosecution Service, as it affects, for example, a person’s wish to have their profile retained on a long-term basis. They may wish to ensure that they are eliminated from further inquiries and so their consent should be considered in that context.

My hon. Friend makes an interesting suggestion that, as with samples, there should be an absolute time limit of 12 months beyond which volunteer material must not be held. I would want to explore this idea fully with the police and Crown Prosecution Service before committing to introduce such a time limit. I certainly am not opposed to the principle, albeit people may wish to consent to have their material retained for a longer period. It is now a question of seeing how that interrelationship fits together. I will certainly reflect carefully on my hon. Friend’s amendment on the retention of volunteer samples.

Amendment 47 deals with material taken on behalf of the International Criminal Court and it may assist the Committee if I say a little about that procedure. The provisions of schedule 4 to the International Criminal Court Act 2001 give police officers in England, Wales and Northern Ireland powers to take DNA samples and fingerprints following a request from the International Criminal Court in The Hague. The International Criminal Court Act 2001 places tight restrictions on the use to which DNA samples and fingerprints taken on behalf of the Court can be put, and nothing in the Bill changes those restrictions, which in essence prohibit the use of material taken at the request of the Court except for purposes specified by the Court.

Part 2 of schedule 1 to the Bill places a general six-month limit on the retention of material once it has been transmitted to the Court; this includes samples, DNA profiles and any copies. My hon. Friend’s amendment would delete the second limb of new paragraph 8(2) of schedule 4 to the 2001 Act, which would therefore require the deletion of all material within six months of its transmission to the Court, whether or not it had fulfilled the purpose for which such material was taken. While we would not expect the police to need to retain the material beyond the six-month point except in exceptional circumstances, we none the less believe it to be right that they could do so where there was an ongoing need to retain it on behalf of the International Criminal Court. That is the important link there: the Court has to need that retention.

I hope my explanation has satisfied my hon. Friend that the provisions in the Bill in respect of those sampled or fingerprinted at the request of the International Criminal Court are entirely appropriate and that we will consider his proposal in respect of volunteers. On that basis I would invite him to withdraw his amendment.

Steven Baker (Conservative, Wycombe)

I am most grateful to the Minister for his consideration of the amendment and for setting out his view of the interplay between clauses 10 and 11. I understand the Government’s point about the Court but I remain concerned that the provisions are a little open-ended. I beg to ask leave to withdraw the amendment.

Clause 11

Clive Efford (Labour, Eltham)

I beg to move amendment 61, in clause 11, page 8, line 39, after ‘withdrawn’, insert ‘, either verbally or in writing,’.

Gary Streeter (Conservative, South West Devon)

With this it will be convenient to discuss amendment 62, in clause 11, page 8, line 39, after ‘time’, insert

‘except where a person is subject to an active police investigation’.

Clive Efford (Labour, Eltham)

This is a similar debate to the one that we have just had on the previous clause and it is about the process for deletion and removal of profiles where people withdraw their consent. I assume that the clause deals with people who have their profile taken and then give permission for it to be retained and also those who volunteer to be on the database. This is the process by which they give that consent and it is not clear what happens if they change their mind.

The amendments introduce the possibility that somebody can withdraw consent verbally by turning up at a police station, where presumably a record is taken, and they can give proof of identity. There could be a verification process—not just a phone call asking for it to be done—by which they could request information be removed, verbally while attending a police station, or by writing to the appropriate body, which would presumably be the local chief officer.

The Information Commissioner in his evidence indicated that there was concern about the process of requesting deletion from the list of information given with consent. He said,

“It is not clear to us how the citizen asserts his or her right to have DNA material deleted.”––[Official Report, Protection of Freedoms Public Bill Committee, 24 March 2011; c. 105, Q304.]

The amendment seeks clarification on how someone who has given details with consent can have them removed. It is again about the process of ensuring that people have sufficient information to understand the process, to know what they are getting into and how to get out if they choose. What is the process? Where is the guidance on how the police should deal with it? There has been controversy around deletions, where they have been requested of police in the past. The Select Committee looked into the matter and there was a degree of inconsistency in the way that local chief officers dealt with it. I know that is slightly different from information given by consent, but even so we do not want a postcode lottery in the way that the matter is processed.

I want to ensure that those people who voluntarily give their information can know what to expect and what the process will be if they approach the chief officer and withdraw that consent.

James Brokenshire (Conservative, Old Bexley and Sidcup)

Clause 11 deals with the retention of material provided voluntarily, beyond the period of the purpose for which it was taken or derived. The hon. Gentleman will note that subsection (3)(a) requires consent to be given in writing. Therefore, the withdrawal would need to be in writing. The hon. Gentleman’s amendments seek to change that, so that withdrawal could be verbal or in writing. I am not attracted to that proposal, as it is likely to lead to uncertainty and confusion, about which my hon. Friend the Member for Wycombe was concerned. It is easy to imagine a situation where a person could claim to have withdrawn their consent orally, but no record of that was held by the police. A match might be made and issues could arise.

The approach we sought to adopt was in language consistent with new section 64ZL under the Crime and Security Act 2010:

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

That points back to the written consent required for retention. Therefore, the proposal simply reflects the drafting on consent in the Act passed under the hon. Gentleman’s Government. We do not think that an oral withdrawal would be appropriate due to concerns about clarity and certainty. The issues of confusion and the postcode lottery arose in a different situation when there was, and still is, indefinite retention under the previous Government’s arrangements, which determined the approach that chief officers of police had to take. Here, however, we are discussing the process whereby written consent for the retention of material can be withdrawn, which would also be in writing, so that there is a documentary record that consent has been given, which would mitigate any areas of dispute. Otherwise, someone could simply say that they had told a police officer that they had withdrawn their consent. It must be a written process. I am sure that we will have guidance about where that might need to be addressed.

To address the hon. Gentleman’s point about certainty and some of the points that the Information Commissioner set out, we need clarity about when written withdrawal should be given in the same way that written consent is given. That would avoid the confusion that the hon. Gentleman seeks to highlight.

Clive Efford (Labour, Eltham)

I shall not press the amendment. The issue is about informing the public about the process and ensuring that they are clear from the outset about what they are involved in. Does the Minister intend to suggest to ACPO or the national DNA strategy board that some sort of leaflet or written confirmation about the process should be sent to everybody who gives their consent for their details to be retained, so that there is clarity? I entirely accept that the issue about the postcode lottery for removing people’s profiles was in a different context. Nevertheless, there was a different approach in different areas. Does the Minister think that it is appropriate to ensure that people are clear about the process from the outset?

James Brokenshire (Conservative, Old Bexley and Sidcup)

Clearly, we are discussing information that has been volunteered under clause 10 and that has been retained with written consent under clause 11. There is a process for obtaining that consent. As part of the implementation of the provisions, we will have discussions with ACPO and the strategy board. As I have already indicated, the strategy board is seized of the issue about volunteered material and of providing assurance in that regard. I want to have clarity, so that if people are giving consent, they know how that consent can be withdrawn thereafter. It is a reasonable point to highlight, but it is not something to address in the Bill. We will examine it as part of the implementation process.

Clive Efford (Labour, Eltham)

I am grateful to the Minister for that response. I entirely accept his point about verbal withdrawal of consent. It cannot be claimed that consent has been withdrawn if the person is simply walking past a police officer in the street and asks for it to be removed. There would, of course, have to be some verification process. I suggest that verbal withdrawal should mean going to a police station and making a request that is recorded there. In some respects, that would be more secure, in terms of identification, than even a letter, but having said that, I beg to ask leave to withdraw the amendment.

Clause 12

Clive Efford (Labour, Eltham)

I have no objection whatever to the clause. I assume that it is entirely in keeping with what is in the 2010 Act and that it relates to something that has been brought to the attention of the police as a result of a speculative search. I cannot imagine any other circumstance in which it would apply. I am interested in a brief explanation of any differences there may be—significant or otherwise—from the 2010 Act. Am I right about where the clause applies?

James Brokenshire (Conservative, Old Bexley and Sidcup)

Clause 12 inserts new section 63O in the Police and Criminal Evidence Act and deals with the situation when material is taken on arrest for a recordable offence and, whether following a speculative search or otherwise, the individual is subsequently investigated for an unrelated offence. Subsection (2) of new section 63O permits the material to be retained as if it had been taken in connection with the second investigation. That addresses the point highlighted by the hon. Gentleman.

Clause 12 ensures that the police will not have to re-sample those under arrest when links are made to other crimes, which will save time, money and inconvenience for all concerned. I think the hon. Gentleman understands the need for such a provision to aid in those other investigations. The provision is appropriate and sensible, and it should be retained for those reasons.

Clause 13

Clive Efford (Labour, Eltham)

I beg to move amendment 63, in clause 13, page 9, line 20, leave out from ‘Police’ to end of clause.

Again, this is a probing amendment. I would like some clarification about what a copy is. If information is held somewhere other than on the national DNA database, where is it? We have talked about DNA profiles, samples and batches that are held by the forensic science services, but the clause refers to copies. Who makes them, what is the process for a copy to be made and who has access to them?

We have been debating who has access to such information and the fact that people are concerned about extremely sensitive and personal details being available to people unknown to them, whether it is someone in the Forensic Science Service or in a police station. What is the process for making a copy and in what circumstances would copies be made?

I have been written to by an individual who wanted to have their profile removed. It was removed from the national DNA database and the person was told that all the information that identified them individually had also been deleted, so that they could no longer be connected to the information held by the Forensic Science Service. They went even further and wrote to the Secretary of State and forced the destruction of all material going right back.

The case highlighted a matter that I have not had a chance to follow up. The person concerned was then written to and told, “We’ve gone back and destroyed all the information.” He said, “How can you do that? You’ve just told me that all the identifying information that linked me to the DNA material held by the Forensic Science Service was disconnected?” There are public concerns about the management of the information and the verification process. The reference to copies is bound to raise some questions about how the information is handled, who has access to it and where it is stored.

The public are rightly concerned about the process of creating copies. When a copy is made, there needs to be independent verification of what is done with it, where it goes and what will be stored. If the practice of making copies continues, we will need some sort of commitment from the Minister or the Government to ensure that the process is properly managed. Although the clause is small, it hits the heart of many of the concerns raised about these data, which are that people have access to very sensitive information but we do not know who they are. It is an important part of the management of data that people have confidence in the process.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

This may be one of those pointy-headed computer geek points. A deletion might occur, which means the police lose access, but a software engineer could go in and look at a lower level to track down the information.

Clive Efford (Labour, Eltham)

The hon. Gentleman may be right; we might be talking about the domain of the pointy heads. However, we might not be; the flat heads might gain access. The information might be deep in the bowels of some piece of software or hardware, or it might not. There is not just one source of information. What will be done with the copies? It is inevitable that when there is a match, copies from the database will be made as part of the evidence for the case. Presumably the police must give that information to a barrister when the case is eventually presented in court. However, people are concerned about what is done with the information once it is retained. The destruction of copies is an important part of that process. That does not just relate to existing material; it will be ongoing as copies are made, presumably downloaded from the DNA database.

Other, more detailed, information is held at the Forensic Science Service end of the process, and the police can interrogate it once a match has been made on the national database. Are there copies of that sort of detailed information that need to be managed too? If members of the public are to have confidence in the whole system—not just in this process, but in any system, including previous Acts—the process of making and retaining copies is a very important part of keeping detailed information secure.

The clause is important, and we need clarification from the Minister, because we are talking about one of the loopholes; the whole edifice could come tumbling down if the management of the information is not as tight as it should be. It does not take many people suffering as a consequence of loose management of information to create a great deal of public concern about how it is handled. It is important that we hear clarification about what the copies are, who makes them, who has access to them, in what circumstances they are made, and how their destruction is overseen when they are no longer needed.

James Brokenshire (Conservative, Old Bexley and Sidcup)

Amendment 63 would require the deletion of all biometric material held by the police or in forensic science laboratories, even when there was no biographical information to reveal the identity of the individual from whom it was taken. We need to consider the appropriate way to give assurance to the hon. Gentleman, and others, in relation to the destruction, or putting the relevant information in a way that does not cause harm. That is the key point that we are seeking to address. Although the samples will be destroyed once the laboratory’s quality processes are complete, the laboratory management system needs to retain a record of the path of the sample in and the profile out in order to meet the requirements of the ISO 17025 accreditation process that all UK forensic science providers must follow. As we discussed last week, the retained record does not include the name and other details of the person from whom it was taken.

I understand that material held in laboratories is normally held against the reference barcodes rather than the names. It will also include the electro-pherograms, which plot results from the automated DNA sequencing machine as an intermediate stage in producing the numerical profile. Obviously the intent behind that is that the profile is deleted, according to the provisions we have discussed previously. However, certain records may be kept to ensure that the appropriate accreditation standards are met.The clause seeks to enable the retention of those records, but in a format that puts them beyond harm by ensuring that the identification information is removed.

The provision has been part of the discussions between ACPO and the Information Commissioner and I understand from the chair of the national DNA database strategy board that the Information Commissioner takes the view that breaking that link reduces quite significantly issues of privacy and compliance with the Data Protection Act 1998 on the retention of what might be construed as personal details. In many ways that is why we have taken the approach of doing something workable to deal with the potential evil, if I can describe it like that, of having records or information that might be tracked back to a particular individual. That is why the provision makes it clear that any retained data that is not destroyed must not include information that identifies the person to whom it relates.

Governments have consistently taken that view. The Crime and Security Act 2010 inserts section 64ZM(2) into PACE:

“If a DNA profile is required to be destroyed by virtue of any of those sections, no copy may be kept except in a form which does not include information which identifies the person to whom the DNA profile relates.”

We are taking the same approach in the Bill as the Labour Government took in the 2010 Act. We recognise the issues at stake about personal identification and personal data, and the need for deletion. However, there is also a requirement, for regulatory purposes, to ensure trust and confidence in the process, and to ensure that accreditation standards can be properly checked and assessed, and information is retained in a form that does not identify the individual. That was why the previous Government rightly took that view in their proposals in the Crime and Security Act. That is why we, too, think that it is the appropriate approach in the Bill and why the language in the clause reflects the language in the Crime and Security Act.

Clive Efford (Labour, Eltham)

The Minister said that information will be retained. I assume that is information that has to be retained because it cannot be destroyed or removed.

James Brokenshire (Conservative, Old Bexley and Sidcup)

It is the information required for regulatory purposes in the ISO 17025 accreditation process to which I have referred. In other words, it is to ensure that there is a check on whether a laboratory meets the necessary standards, so that we have trust and confidence in the process that it has adopted. That is why certain records need to be retained, hence my earlier reference to barcodes. It is important for trust and confidence. However, and this is the most significant point, that information should be retained on an anonymised basis, so that personal data, which might otherwise rightly be a concern, are addressed in that different way, and in the same way as under the previous Government.

Clive Efford (Labour, Eltham)

This is an important point. If the retention is for verification—for the accreditation process, to ensure that the standards are being met by the forensic science service provider—are there not enough samples of material that is to be retained for that need to be satisfied? We are dealing with information that should be removed, yet an element of it is being retained. I am not clear why that is happening, and why it is not being destroyed, if possible, given that the Bill’s intention is that people’s biometric profiles and all other details should be removed.

James Brokenshire (Conservative, Old Bexley and Sidcup)

The hon. Gentleman highlights an important point, which is the need to ensure that there is deletion of the samples of the original biometric material that created the profile. There are various steps and documents that effectively show how a profile is created from that sample. We are very clear about the deletion of the profile on the DNA database; it gets deleted, so we are not talking about that. My clear understanding is that the electro-pherograms that are then created are equally a profile, so they will be deleted. What we are seeking to capture is intermediate information that may be required for accreditation purposes and may provide a link. We want to anonymise that copy, so that the accreditation purposes can be met by the forensic laboratory, but in a manner that seeks to not offend the Information Commissioner, or ignore some of the understandable concerns that might otherwise exist.

We are being consistent with the view taken by the previous Government. If the hon. Gentleman is taking another view, it would be useful to explain the difference.

Clive Efford (Labour, Eltham)

I shall not push the amendment to a vote. The Information Commissioner, however, raised a point about electro-phoretograms in his evidence:

“Historically, difficulties have arisen with the destruction of individual electro-phoretograms as these are, in some cases, processed in batches.”

He said that the process should not be used in future, and that deleting the profiles should be allowed.

The Minister is, I think, referring to the fact that all information identifying that data at the forensic science service end of the process has to be removed in order for it not to be attributed to an individual. However, as Dr Wallace pointed out in her evidence, the information that is held at that point in the process is extremely detailed. It is personal and therefore the individual, by the very nature of the information that is being held, is identifiable, because it is their DNA profile. The information is much more detailed than what is on the national DNA database, which is only a string of numbers.

The deletion of that information is an important area of debate. Perhaps it is something we can investigate further and return to at a later stage, because I am still not clear why, in circumstances when information needs to be deleted—other than the fact that it cannot be deleted, which has been alluded to by others, including the Information Commissioner—it needs to be retained and planned for. I assume that those are the only copies that the clause refers to, and that there are no other copies of the information, and that we are referring to data held by the forensic science services and not to information that may be downloaded from the national database and a copy kept, or to other copies of information obtained directly from the forensic science services that may be held in a file, in a police station or electronically on someone’s computer.

I am not sure if the Minister intends to clarify those points, but they are important issues that perhaps could be covered in a clause stand part debate. I beg to ask leave to withdraw the amendment.

Clive Efford (Labour, Eltham)

I seek clarification from the Minister when he sums up. When we refer to copies in the clause, are we referring just to the electro-phoretograms held by the Forensic Science Service, or are we talking about other copies of information, such as a sheet of paper on which there are DNA numbers downloaded from the national DNA database or other data that the police can request after a match is made by Forensic Science Service providers? Those data might have even more detail than is on the national DNA database.

Can the Minister clarify what these copies are? I accept that he understands how sensitive the issue is. We have had comments from individuals who are concerned about information that is still retained because it cannot be removed due to the way that data are processed. How that is managed is an important part of the Bill. I accept that the problem existed under the previous Act as much as it does under the Bill, but it is still important that we are clear about how we manage this information; otherwise people will be misled about how successful we can be in destroying any information that can be linked to them in future. It is important that people have confidence about that.

Steven Baker (Conservative, Wycombe)

I rise to support the clause and to place on the record a technical implication of proposed new subsection (2). A database as important as the DNA database will be regularly backed up; I would have thought that such a critical database would be backed up nightly. To destroy database records, it will be necessary to deal extremely carefully with the back-ups of the database as well. I wanted to put that point on the record.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I thank hon. Members for their contribution to the debate. In relation to the point made by my hon. Friend the Member for Wycombe, those data would not be anonymised; they would have the relevant information about the individual concerned and therefore would not be captured by the exemption that otherwise applies to anonymous data under clause 13. Clearly, from an implementation perspective, and from the practical perspective of ensuring that information and any back-up thereof is properly removed from the national DNA database, it is a relevant point, and one that I note in the context of implementing the provisions.

To reassure the hon. Member for Eltham, let me say that copies would normally only occur as part of the process of deriving the profile; they would not be made at random during the course of an investigation. We are probably talking the same language when it comes to the forensic process of moving from having a sample to creating the profile, and to loading it on to the national DNA database—there are also the intermediate steps.

There is a need for accreditation to ensure that the processes that are being adopted are appropriate. We recognise that information could be personal, and we will ensure that the harm is addressed by anonymising it. I will reflect on this subject, and I will check the record of the debate to make sure that there is clarity on the issue. If any clarification is needed, I will certainly come back to the hon. Gentleman on this point, but I have given my clear understanding of how the process is intended to operate, why copies may arise as part of the intermediate steps to get to the profile loaded on to the national DNA database, why they are destroyed and why, during the intermediate steps, there may be a need to retain those copies in an anonymised form. Doing so ensures that appropriate accreditation can be maintained by the laboratory. We are talking about a practical issue on which we have reflected carefully, in terms of giving comfort on the understandable concerns that may arise. With that assurance, I hope that hon. Members will be minded to retain the clause.