Conclusions and recommendations
1 Introduction
1. We
welcome the Home Office's new practice of publishing a full Human
Rights Memorandum on its website at the same time as a Bill is
published, and based on the Memorandum prepared for the Parliamentary
Business and Legislation Committee. We commend this approach to
other departments as an example of best practice. (Paragraph 3)
2 Retention of fingerprints, DNA samples and profiles
and the right to respect for private life (Article 8 ECHR)
2. In
so far as the proposals in the Bill are designed to introduce
a more proportionate response to the judgment in Marper v UK,
we welcome their introduction. (Paragraph 8)
3. Our
predecessor Committee accepted that the Scottish model for retention
of DNA samples and profiles taken from innocent people and children
is more likely to be proportionate than the measures in the Crime
and Security Bill 2010. We agree. In so far as these measures
are designed, in comparison, to create a less intrusive mechanism
for the retention of biometric material, we welcome the Government's
proposals. (Paragraph 10)
4. Subject
to a few specific concerns, which we outline below, there are
a number of welcome measures in the Bill, which in our view make
it more likely that the operation of the National DNA Database
will be compatible with the right to respect for private information.
(Paragraph 11)
5. We
welcome the proposal that DNA samples should be destroyed within
six months or less. (Paragraph 12)
6. We
welcome the Government's decision that a narrower approach to
retention is appropriate to show due respect to the right of innocent
people to respect for the sensitive personal information associated
with biometric material. We consider that this approach is more
likely to be justifiable and compatible with Article 8 ECHR. (Paragraph
15)
7. We
welcome the decision of the Government to adopt a maximum 5 year
limit on retention of biometric material taken from innocent people
and children, other than for national security purposes. We consider
that removing the possibility of rolling renewals leading to indefinite
retention significantly reduces the potential for the disproportionate
interference with individual rights in practice. While this policy
intention is clear from the Explanatory Notes and the associated
materials which accompany the Bill, including the Human Rights
Memorandum, an ambiguity in the drafting may create some difficulties
in interpretation. We propose a simple amendment to resolve this
problem, below. If the Bill is not amended, we recommend that
the Minister give assurances on the floor of either House to the
effect that it is the Government's intention that only one renewal
will be possible under Clause 3 of the Bill. (Paragraph 18)
8. We
are concerned that the proposal to continue the retention of biometric
material taken on arrest in some cases may create a significant
risk of incompatibility with the right to respect for private
life (Article 8) ECHR. Without a clearer picture of the broad
"prescribed circumstances" in which retention will be
permitted, it is impossible for us to reach a conclusive view.
However, on the material provided by the Government during earlier
debates, we are not yet persuaded that these proposals will be
capable of justification. (Paragraph 26)
9. We
welcome the decision of the Government to introduce a number of
additional safeguards absent in the Crime and Security Act 2010,
in connection with national security determinations, including
provision for statutory guidance and oversight by the Biometrics
Commissioner. We particularly welcome the decision to allow the
Commissioner to overturn decisions on retention for national security
purposes. Unfortunately, in the light of the proposed discretion
being granted to Chief Officers in practice, we remain concerned
about the limitations in these proposed new safeguards. (Paragraph
31)
10. In
the light of the various existing statutory provisions for the
extraordinary retention of biometric information in connection
with specific issues connected with national security threats,
the need for an extremely broad residual power of the type set
out in the Bill requires better justification. In our view, exceptional
powers of this type should generally be circumscribed by reference
to a specific aim and accompanied by tailored safeguards. A generic
power of this type becomes more difficult to justify when such
specific powers already exist. We are concerned that the Minister
does not appear to have justified why this type of generic power
is necessary or proportionate, beyond a Government desire to maintain
flexibility for the police to address perceived threats to "national
security". We recommend that the Minister should explain
why these provisions are strictly necessary or these provisions
should be removed from the Bill in their entirety. Subject to
further justification being provided, we propose the following
amendment which would remove the provisions in the Bill which
relate to national security determinations. (Paragraph 34)
11. We
are concerned that without further definition on the face of the
Bill to clarify the independence of the role of the Biometrics
Commissioner, the value of this role as a safeguard in connection
with national security determinations (and in connection with
exceptional retention of DNA collected from people arrested but
not charged) will be significantly undermined. We consider that
the Bill should be amended to enhance the independence of the
Biometrics Commissioner. We consider that the starting point for
the protection of the independence of posts of this kind should
be the appointments model used for the Information Commissioner,
including statutory minimum terms for appointment and clear limitations
on removal from office. In particular, we consider that the power
of the Secretary of State to staff the office of the Commissioner
and to direct the Commissioner to report on Specific matters should
be removed. (Paragraph 37)
12. We
are concerned that the Minister has not yet explained how the
Biometrics Commissioner will be able to scrutinise the assessment
of the police that an individual's DNA must be retained for the
purposes of national security without any information from that
individual or elsewhere which might challenge the facts or judgment
involved in the decision-making exercise. (Paragraph 38)
13. We
are not persuaded that the review of this type of decision could
not legitimately be undertaken by a Court, subject to an application
based on an initial assessment by the Government of the degree
of risk to national security. Courts regularly review decisions
about national security in the context of counter-terrorism decisions
(for example, in the making of control orders or in the new TPIMs
proposals) and in the making of public interest immunity decisions.
The Secretary of State accepts that if the original decision maker
does not accept the decision of the Commissioner on review that
decision could be subject to judicial review. We are not therefore
persuaded that there is any reason why national security determinations
for the purposes of retention should not be subject to prior judicial
authorisation or subsequent review. Similarly, there appears
to be no reason why a determination should not be subject to prior
authorisation by the Commissioner on application. We propose alternative
amendments to the Bill with these effects for the purposes of
debate. (Paragraph 40)
14. We
consider that, if the measures in the Bill are assessed as proportionate
with the right to respect for private life, then the possibility
of an additional final search before destruction is unlikely to
pose such an additional interference to create a separate violation
of Article 8 ECHR which could not be justified. However, we are
particularly concerned about the scope of the provision in New
Section 63D(5), particularly in connection with its application
to material unlawfully gathered (New Section 63D(2)) or given
voluntarily for a distinct purpose (New Section 63M). We consider
that the introduction of a residual power for the Chief Officer
to conduct speculative searches in connection with this material
after it should otherwise be destroyed in accordance with the
provisions in the Bill significantly undermines the safeguards
in the Bill against the unlawful taking and retention of biometric
material and to protect the private life interests of individuals
who help the police by providing biometric material for a specific
purpose. We recommend that the Bill should be amended to make
clear, that in these circumstances, data should not be processed
further, including for the purposes of any speculative search,
once it has been ascertained that it was gathered unlawfully or,
in the case of voluntarily given material, consent has been withdrawn
or the material has already been used for the limited purpose
for which consent was granted. (Paragraph 45)
15. The
Minister should be required to give further information on technical
or other reasons for the approach which the Government proposes
to take in connection with the destruction and deletion of DNA
profiles. (Paragraph 52)
16. We
recommend that the Minister should be asked to explain why the
indentifying bar code cannot be deleted from the records of the
Forensic Science Laboratories and/or from the records held by
local police. If DNA profiles cannot be truly anonymised, we consider
that there remains an outstanding risk of a violation of the right
to respect for private life (Article 8 ECHR). (Paragraph 53)
17. We
accept the Government's analysis that the European Court of Human
Rights did not strictly require independent review in every case
and that the proposals in the Bill are more clearly defined than
the provisions for indefinite retention without review. Retention
for three years without opportunity for review in individual cases
is more likely to be justifiable. However, given the unusual circumstances
of automatic retention based on the criteria set out in the Bill,
we consider that the provision for review and destruction in exceptional
cases would provide a valuable safeguard against arbitrary and
disproportionate retention in some cases. (Paragraph 58)
18. We
regret the lack of detail provided on the provision for appeals
against the decisions of the Biometrics Commissioner to consent
to the retention of DNA taken from innocent people in prescribed
circumstances. We consider that, in light of the breadth of these
proposals, and the significant discretion being afforded to the
Secretary of State to determine the circumstances in which the
special mechanism will apply, the opportunity for independent
review will be particularly significant to the assessment of proportionality
in individual cases. We call on the Minister to provide further
detail on the proposed scope of any appeal from the decision of
the Biometrics Commissioner. (Paragraph 60)
19. We
recommend that the Minister provide a fuller explanation of the
likely impact of retention for 3-5 years on people under 18; whether
that impact is more or less detrimental than that faced by over
18s and whether there is evidence that the value of the inclusion
of biometric material taken from children and young people on
the National DNA Database is likely to have an enhanced impact
on the prevention and detection of crime and the protection of
the rights of others. (Paragraph 65)
20. We
recommend that the Government should provide further information
for its justification for continuing to retain biometric material
taken from people convicted of minor offences as children; the
distinct impact of indefinite retention of that material on such
offenders; and evidence of the contribution made to the prevention
and detection of crime made by the inclusion of such material
on the National DNA Database. Based on the evidence so far provided,
we are concerned that indefinite retention of all child offenders
biometric material (except those convicted of a first, minor offence)
may be disproportionate, subject to challenge under Article 8
ECHR and inconsistent with the requirements of the UN Convention
on the Rights of the Child. (Paragraph 68)
21. We
welcome the Minister's reassurance that where a Penalty Notice
for Disorder (PND) is successfully challenged in criminal proceedings
and set aside, the relevant material should be destroyed. However,
we consider that the Bill should also be amended to provide that
when a PND is issued which will engage Clause 8, officers should
be under a duty to notify the accused of the implications of accepting
a PND for the treatment of their biometric information. We propose
a minor amendment to the Bill for this purpose. (Paragraph 74)
22. We
welcome the acceptance in the Explanatory Notes that where DNA
retention is no longer justified, the removal of categories of
profiles can be dealt with under guidance issued under Clause
24. However, we recommend that the Minister should be asked to
provide further information on the Government's view that blanket
retention remains appropriate at this time. We consider that there
is a clear case for keeping the indefinite retention of biometric
material gathered from people given PNDs or convicted of minor
offences under review. (Paragraph 80)
23. We
regret that an interim solution was not actively sought by the
Government in this case. We particularly regret that no steps
were taken to stop the collection and retention of samples and
profiles whose retention was unlikely to be justified (for example,
samples and profiles taken from children arrested in connection
with very minor offences and subsequently released without charge).
We consider that, as a matter of good practice, the introduction
of interim measures designed to minimise the risk of further,
similar violations, while a permanent response to an adverse human
rights judgment of the domestic courts or the European Court of
Human Rights is being developed, should be encouraged. (Paragraph
82)
24. We
are disappointed that accurate statistical information about the
operation of the National DNA Database does not appear to have
been routinely gathered. ]We recommend that the
Government should be required to gather information about the
operation of the proposals in the Bill which should be published
in a regular report to Parliament. We consider that the relevant
information should include:
- Information
and statistics on the categories of biometric information retained
and the demographics of the people whose information is retained
(including the numbers of people convicted, charged but not convicted,
voluntarily providing information, material retained pursuant
to a national security determination and any material retained
from persons arrested but not charged, in the prescribed circumstances
identified in the Bill);
- Information and statistics on
the number of successful searches of the National DNA Database,
including criteria for success (for example, excluding people
from investigations, identifying suspects, leading to further
information and the conviction of an individual). It would be
particularly helpful to identify the number and type of cases
where biometric material identified through a search of the database
has played a role in a conviction (and particularly what role
that material played).(Paragraph 85)
25. While
we consider that this research and record keeping will require
careful coordination between the police and the Crown Prosecution
Service, we consider that in light of the pioneering role played
by the UK in the development of database technology in the prevention
and detection of crime, the collation of information designed
to allow for effective qualitative research on the effectiveness
of the National DNA Database is important. The Bill should be
amended to require the Secretary of State to produce such regular
reports. We have produced the following amendment for discussion.
It is designed to create a statutory duty to publish information
on the operation of the NDNAD and to recognise that these functions
could be performed by any combination of the Secretary of State,
the Biometrics Commissioner or the Strategy Board. (Paragraph
86)
26. We
welcome these provisions: in our view they provide significant
additional protection to the important right of the child to respect
for their personal information, a right which has been too freely
interfered with by the growing use of biometric identification
systems in schools. (Paragraph 91)
27. In
our view, "reasonable practicability" is too low a threshold
for dispensing with such an important safeguard for the right
of a child to respect for their private life. We do not see the
necessity for such a catch-all exception from the requirement
for parental consent and recommend that it be deleted from the
Bill. (Paragraph 93)
28. We
consider that this interference with older children's right to
respect for private life under Article 8 ECHR is not justified
as being necessary and proportionate. We recommend that the Bill
be amended so as to enable children of sufficient maturity and
understanding to decide for themselves whether their biometric
information should be processed. (Paragraph 101)
29. The
following amendment would give effect to this recommendation:
Clause 27, page 18, line 18, before sub-clause (a)
insert "aa) the child has sufficient maturity and understanding
to give consent to the processing of their biometric information."
(Paragraph 102)
30. Alternatively,
in order to give schools greater certainty about the circumstances
in which parental consent is not required, the Bill could be amended
to follow the approach taken in relation to attendance at religious
worship, where statute expressly provides sixth-form pupils with
the right to be excused from such attendance. The following amendment
would give effect to this recommendation:
Clause 27, page 18, line 18, before sub-clause
(a) insert (aa) the child is a sixth form pupil". (Paragraph
103)
31. We
consider our proposed amendment to the Bill to be more in keeping
with the express recognition of the evolving capacities of the
child with greater age and maturity in Articles 5 and 12 of the
UNCRC. (Paragraph 105)
4 CCTV and the right to respect for private life
(Article 8 ECHR)
32. We
welcome the decision to introduce new regulatory measures in connection
with the operation of CCTV. Whether the Code will help strike
a of a proportionate balance between the rights of individuals
to respect for their private lives and the wider interest in the
prevention and detection of crime is difficult to assess without
seeing a final draft of its proposed content. We welcome the decision
to subject the Code to the affirmative procedure for Parliamentary
approval. However, we note that by limiting the application of
the Code to the public sector, its impact may be restricted. Since
the Code is self-regulatory, the Information Commissioner will
continue to have a very important role in connection with the
protection of personal information gathered by means of CCTV.
The Information Commissioner and the proposed Surveillance Commissioner
will need to have a close working relationship in order to ensure
that the requirements of the Data Protection Act 1998 and the
measures in the Code are consistent and complementary. We recommend
that the Information Commissioner is closely consulted in the
finalisation of the CCTV Code. (Paragraph 109)
33. We
welcome the recognition in the consultation on the proposed Code
that specific guidance may be necessary in particular contexts.
We recommend that the Code should include information on the use
of CCTV technology in schools, residential care homes and healthcare
settings, where risks to private lives of pupils, residents and
patients may be heightened. (Paragraph 110)
5 Powers of entry and the right to respect for
private life, home and correspondence (Article 8 ECHR)
34. We
are deeply concerned at the proposed breadth of these proposals
in light of the Minister's indication that the Henry VIII power
in Clause 41 may be used to extend powers of entry where Ministers
consider enforcement action is appropriate. At its broadest,
following the Minister's explanation, this power could be used
to introduce a power for State agents or others to use force to
affect an entry by way of delegated legislation. Alternatively,
it could be used to create new powers of entry or to remove restrictions
on existing powers. In our view, this is an inappropriately broad
delegation of powers in connection with the individual right to
privacy and the peaceful enjoyment of possessions in connection
with residential or commercial premises. We are not satisfied
that this ambiguous proposal is found in a Bill designed to reinstate
protections for individual rights and liberties. (Paragraph 115)
35. We
welcome the recognition in the Bill that powers of entry should
be strictly limited to those circumstances in which such a power
is justified, necessary and accompanied by appropriate safeguards.
The decision to review all existing powers of entry is a welcome
one. Our predecessor Committee reported on the lack of safeguards
accompanying these types of powers on a number of occasions. We
consider that a review of existing powers of entry offers a clear
opportunity to identify where powers of entry continue to be justified,
proportionate and necessary. It also provides an opportunity to
promote legal certainty by including clear, basic statutory safeguards
in connection with each such power. In our view, at a minimum,
each power of entry should be strictly defined, including clear
limits on the circumstances when the power may be exercised and
the identity of the person or body exercising the power. We regret
that the review of existing powers was not completed before this
legislation was introduced. (Paragraph 116)
36. We
are particularly concerned that, at this late stage in the Bill's
progress, Parliament has not been provided with an accessible,
conclusive list of each of the existing statutory powers of entry
which may be subject to review. In our view this is testimony
to the expansion of the use of powers of entry by the State and
illustrative of the need for Parliament to examine the proportionality
of these powers and their associated safeguards closely. We recommend
that the Government publish a final list of existing statutory
powers, accompanied by a clear indication of the scope of the
relevant power and the person or persons entitled to exercise
it, together with an outline of any relevant safeguards as a precursor
to its review and preferably before the next stage of this Bill's
progress in the House of Lords. (Paragraph 117)
37. We
are concerned that since this review has not yet been completed,
the legislation proposed in this Bill is overly broad and creates
a risk that delegated legislation may be used in future in a way
which may create a risk to the right to respect for private life,
without adequate opportunity for scrutiny by Parliament. We consider
that, if a broad power to amend and replace existing powers of
entry is approved, the Bill should be amended to limit this power
to amendments which introduce new safeguards against inappropriate
use of powers of entry or repeal existing powers. (Paragraph 118)
38. While
we welcome the wider review of the operation of enforcement measures
and the work of bailiffs, we consider that there is a particular
justification for the repeal of the power of the Secretary of
State to authorise the use of force by private operators. While
other powers of entry may also require reform or repeal, we consider
that the risks posed by this power are particularly stark. (Paragraph
120)
39. We
reiterate our view that all-premises and multiple-entry warrants
(civilian and military) create new and unique risks for the right
to respect for privacy, as guaranteed by the common law and Article
8 ECHR. (Paragraph 124)
6 Pre-charge detention of terrorism suspects
40. We
welcome the provision in the Bill making permanent the recent
reduction in the maximum period of pre-charge detention for terrorist
suspects from 28 days to 14 days. (Paragraph 129)
41. We
also doubt whether it has been demonstrated, by evidence, that
it is necessary to make provision now for a contingency power
to extend the period of pre-charge detention beyond 14 days in
the event of some future emergency. (Paragraph 130)
42. We
recommend that the Government reconsider its intention to bring
forward an order-making power to increase the maximum limit when
Parliament is dissolved. (Paragraph 131)
43. We
recommend that the Government bring forward amendments to the
legal framework governing pre-charge detention of terrorist suspects
as soon as possible following the decision of the Supreme Court
in Duffy, in order to ensure that the legal regime operates in
practice in a way which is fully compatible with the procedural
requirements of Article 5 ECHR. (Paragraph 132)
7 Counter-terrorism stop and search powers
44. In
our view, the removal of the requirement takes away a significant
safeguard against exercises of the power to search which may be
incompatible with Convention rights. [...] In the absence of clearer
evidence of operational difficulties caused by the existing requirement,
we are not persuaded of the necessity for removing a safeguard
which reduces the risk of an intrusive power to search being exercised
in a way which infringes an individual's rights and liberties.
(Paragraph 138)
8 Safeguarding vulnerable groups and vetting and
barring
45. We
welcome the Government's aim of making the Vetting and Barring
Scheme more targeted and proportionate, by taking a more explicitly
risk-based approach. (Paragraph 140)
46. We
welcome the amendment which in our view remedies the incompatibility
identified in the court's declaration of incompatibility in the
Royal College of Nursing case. (Paragraph 143)
47. In
our view, Article 6 ECHR requires that an individual who is included
on the barred list have the opportunity of a full merits hearing
before an independent and impartial tribunal. We therefore consider
that the restrictions on the jurisdiction of the Upper Tribunal
in s. 4 (3) of the Safeguarding Vulnerable Groups Act 2006 are
incompatible with the right of access to an independent court
or tribunal in Article 6 ECHR. We recommend that the Bill be amended
to repeal s. 4(3) and so provide for a full merits appeal against
inclusion on the barred list. (Paragraph 147)
9 Criminal Records
48. We
welcome these changes to the system of criminal record disclosure
which seem to us likely to achieve a more proportionate approach
to the disclosure of sensitive personal information. (Paragraph
150)
49. The
introduction of basic level certificates, covering only unspent
convictions, would be a further step towards a more proportionate
approach to disclosure of criminal record information and we therefore
recommend that section 112 Police Act 1997 be brought into force.
(Paragraph 151)
50. We
welcome this provision for an independent review of the inclusion
of non-conviction information on an enhanced criminal records
check. (Paragraph 152)
10 Freedom of information and data protection
(Article 8 ECHR)
51. We
consider that the proposed changes to the statutory duties and
terms of appointment of the Information Commissioner in Clauses
101-104 are welcome and should enhance the independence of that
role. (Paragraph 156)
11 Reform of the Public Order Act: Insulting words
or behaviour and freedom of expression (Article 10 ECHR)
52.
We support the amendment of the Public Order Act 1986 to remove
all references to offences based on insulting words or behaviour.
We consider that this would be a human rights enhancing measure
and would remove a risk that these provisions may be applied in
a manner which is disproportionate and incompatible with the right
to freedom of expression, as protected by Article 10 ECHR and
the common law. (Paragraph 158)
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