Counter-Terrorism Bill

My Lords, the provisions on the retention and use of fingerprints and samples have three objectives: putting a counterterrorism DNA database on a firmer legal footing, allowing fingerprints or samples taken under the Police and Criminal Evidence Act 1984 and the Police and Criminal Evidence (Northern Ireland) Order 1989 to be used for national security, and making it easier to allow fingerprints or samples taken under the Terrorism Act 2000 to be placed on the National DNA Database. Clause 18 puts the retention and use of DNA and fingerprint material that is not currently subject to statutory restrictions on a statutory footing, permitting law-enforcement use for certain purposes. Those purposes are: the interests of national security; purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution; and purposes related to the identification of a deceased person or of the person from whom the material came. I must make it clear that these provisions do not—I repeat, do not—create any new powers for the covert acquisition of fingerprints and samples. Included in the samples covered by Clause 18 are those obtained covertly under Part 3 of the Police Act 1997 and Part 2 of the Regulation of Investigatory Powers Act 2000. The use of the powers in those Acts is subject to numerous safeguards and oversight. Covert and investigatory powers can be used only when they are necessary and proportionate with regard to human rights. Independent oversight is exercised by the Office of Surveillance Commissioners, the OSC, which conducts regular public authority inspections that are reported to the Prime Minister, and produces annual publications of its findings. Anyone who believes that they have been the victim of unlawful, covert surveillance or any other investigatory powers set out in RIPA can apply to an investigatory powers tribunal to investigate their claim. The tribunal is independent of government, law enforcement and intelligence services. Statutory codes of practice provide guidance on the use of covert investigatory powers, including surveillance, and the Home Office is currently revising the covert surveillance code of practice. The OSC also provides advice during its regular inspection visits to public authorities. As has been said, these amendments refer to the use of samples covered by Clause 18 for the prevention or detection of crime. Clause 18(4)(b)(i) covers offences under UK law or the law of another territory. Clause 18(4)(b)(ii) covers conduct that is, or corresponds to, conduct which, had it taken place in the UK, would have constituted an offence. The definition in this Bill has been in operation under Section 64(1B)(d) of the Police and Criminal Evidence Act since 2001, when it was amended by Section 84 of the Criminal Justice and Police Act 2001. Since that change, there have been no challenges to the provision. The definition can also be found in the Police and Criminal Evidence (Northern Ireland) Order and the Terrorism Act 2000. There are two reasons why the definition must remain as currently drafted: first, there is an operational need to share samples internationally to tackle crimes such as drug trafficking, people smuggling and terrorism; and, secondly, for the purpose of uniformity, which enables the most effective and efficient use of retained samples. Sub-paragraphs (i) and (ii) of Clause 18(4)(b), to which these amendments attach, provide the definition of crime for the purpose of these clauses. When this amendment was tabled in Committee, I made the point that the definition as currently drafted is essential for the most efficient use of fingerprints and samples. The definition must remain the same if we are to be able to counter the national and transnational threat of crime and terrorism. The effect of this definition is that the police can share fingerprints and samples internationally to aid terrorist and criminal investigations of crimes committed in the UK or abroad. The threat of terrorism and crime requires both national and transnational multi-agency co-operation. It is important that we are able to share our data with national and international partners so that we can properly protect our national security and investigate crimes of an international and serious nature, such as drug-related crimes. The definition of crime at Clause 18(4)(b)(i) is so drafted to maximise international co-operation in circumstances where there is a serious criminal offence abroad. I shall explain the process by which samples covered by Clause 18, to which the amendment applies, may be shared internationally. A request from a foreign partner would be submitted to the police to cross-check a sample with one held here. Initially, given the sensitivity of the samples covered by Clause 18, the police would treat the request with caution and, unless they considered it a valid request for a check regarding a particularly serious crime, it would be denied. There is no requirement to share these samples. Should the request pass this stage, a check may be done against the samples covered by Clause 18. It must be remembered that the number of samples covered by Clause 18 is very limited. Where a sample is shared with a foreign partner, it is completely anonymised. Therefore, if it is a fingerprint, the foreign partner receives only an image of the fingerprint and none of the biographical detail, the status of the sample or its provenance. Where it is a DNA sample, the foreign partner will receive a string of numbers—again, stripped of the biographical detail, status and provenance. Should the foreign partner subsequently find a hit against the shared sample, it would have to return to the police to request any of the sample’s biographical information, status and provenance, and a decision would then be taken as to whether to reveal that information. The decision to share samples internationally is discretionary and is taken by the police. Given the nature of the samples covered by Clause 18, the decision is given considerable thought. There are safeguards against the abuse of samples held subject to Clause 18. In line with his existing powers, the Information Commissioner will provide independent oversight of the database with regard to data protection issues. Additionally, the Metropolitan Police Service will liaise with the newly appointed Forensic Science Regulator to establish protocols for international exchange of DNA data. Working with the Custodian of the National DNA Database, the MPS will ensure compliance to standards it has set, which are accepted and adhered to by forensic laboratories. The definition of crime in Clause 18(4)(b) is the same as that in Section 64(1B)(c) of the Police and Criminal Evidence Act 1984, Article 64(1B)(c) of the Police and Criminal Evidence (Northern Ireland) Order 1989 and paragraphs 14 and 20 of Schedule 8 to the Terrorism Act 2000. In those statutes and in this Bill a crime is defined as a criminal offence under the law of the UK or of a country or territory outside the UK. It is vital that the definition of crime remains the same across those pieces of legislation and in the Bill we are debating today. Such a uniform definition is fundamental to the efficient use of fingerprints and samples. As long as fingerprints and samples are obtained legally and retained legally, their subsequent use for the prevention and detection of serious crime must be of the utmost importance. As I have already said, samples are shared internationally only for the most serious crimes and where this definition has been in operation since 2001. The number of requests received from all other countries to check profiles from unsolved serious crimes or for the identification of an unknown deceased person believed to be a United Kingdom national for the year 2007-08 is 727. It would be an anomaly for the definition in this legislation not to remain the same as that in other legislation concerning the retention and use of fingerprints and samples. What is more, given the nature of the samples held on this database, the ability to share them during investigation of the most serious crimes is likely to be of great utility to the United Kingdom as we work to build up a clearer picture of the criminal and terrorist networks which entwine and span the globe. It is important to remember that the number of samples covered by Clause 18 is very small. The number of officers who have access to those samples is limited and all are subject to stringent vetting processes. The samples subject to Clause 18 will be classified as secret and, as such, they will be closely guarded. Where these samples are shared internationally, it will be only for the most serious offences, in the very limited circumstances I have set out and subject to anonymisation. We can all agree that it will be in the national interest to bring to justice those who have committed the most serious offences and we must do all we can to assist in that. I can state absolutely categorically to the noble Baroness, Lady Miller, that such material would not be used in regard to drinking or other very minor crimes in this country. Historically, that has not been the case. I hope the noble Baroness is able to withdraw her amendment.