Chris Huhne

Crime and Security Bill: Third reading

Speech delivered on Mon 18th Jan 2010

This is an omnibus Bill. As such, it is a random cross-section of measures that have been thrown together for no greater reason than the fact that they happened to be hanging around at the bus stop at the time when the Bill was going past. There are some pleasant-looking passengers dotted around the bus, but the overall impression is, I fear, tainted by the leering ogre picking its teeth on the front seat on the top deck-namely the Government’s proposals for the DNA database. Although a comb has been raked through this beast’s tangle since the White Paper, the effect is scarcely pleasing.

It is the dominance of those proposals that will determine the fate of the Bill, at least as far as Liberal Democrat Members are concerned. If the Government do not accept dramatic amendments in Committee, we will be entitled to draw the conclusion that they are merely cocking a snook at the European Court of Human Rights judgment in the S and Marper case. That would be entirely unacceptable, and we would not only oppose the Bill on Third Reading, but would do our utmost to beach it like a whale during wash-up.

I have spoken before about the ministerial tendency to overdose on legislative laxatives. This is the 69th home affairs Bill since 1997 and the 60th criminal justice Bill. The Government are the proud father and mother of more than 3,600 new criminal offences. Even those in favour of law, as I am, recognise that it is possible to have too much of a good thing. This legislative diarrhoea is, frankly, a conspiracy between Ministers who want to leave their footprints in the legislative sand and civil servants who recognise that the fast track to promotion is to spend time with Ministers discussing their pet legislative proposals.

Even for this Government, this Bill breaks new ground. It amends the Policing and Crime Act 2009, which received Royal Assent just 13 days before the current Bill was announced. The Home Office Bill team have really outdone themselves on this occasion, and I think we can be sure that there is at least one part of the public sector where there can be no doubt about productivity performance, even if there remains some doubt-if I read what is happening across the House-about the quality of the product.

Before moving on to the DNA proposals, let me deal with some of the less controversial passengers on this particular bus. We welcome a reduction in police red tape, but in reducing the length and number of forms that the police are required to complete, we must ensure that we also monitor fair dealing. Stops and searches of all kinds, but particularly those carried out under terrorism legislation, disproportionately affect ethnic minorities. Since 1997-98, black people have been almost eight times more likely to be stopped and Asian people twice as likely to be stopped as white people. I accept that the requirement in primary legislation to record the person’s ethnicity is a welcome move, but this must be kept under constant management review. Stop and search must be seen to be proportional to the threat if the police are to retain the confidence of minority communities, which is so crucial in terms of gathering intelligence and ensuring that witnesses come forward to secure convictions.

The Bill fails, however, to consider the problems of stops and searches under sections 44 and 45 of the Terrorism Act 2000, whereby they can be undertaken without the need for any suspicion at all. Just last week, the Government again found themselves on the wrong side of a European Court of Human Rights ruling on this very legislation. There have long been concerns about the massive overuse of section 44 powers, particularly by the Metropolitan police. Only 0.6 per cent. of people stopped under these powers in the second quarter of 2008 went on to be arrested, and the Government’s own terrorism adviser, Lord Carlile, pointed out last year that searches were being carried out to provide “racial balance”. Yet in this Bill the Government have made no moves to tighten up on their use. I hope that in Committee Ministers will table amendments that address the issues that the European Court of Human Rights has raised about sections 44 and 45, and will ensure that these stop-and-search powers are used in a proportionate manner by more tightly drawing the conditions in which they can be deployed.

Part 5 of the Bill introduces measures to tackle domestic violence further, and to protect the victims of it in the immediate aftermath of a suspected offence. We welcome these so-called “go” orders as a useful way to giving victims of domestic violence the time and safety to make decisions about their future. However, it is imperative that these orders are coupled with support and counselling for victims, and temporary housing for the perpetrators, as is the case in the other countries upon whose provisions they appear to be modelled.

Part 6 concerns gang injunctions for under-18s. We are less happy about this area of the Bill, since it appears to be another case of legislating on the hoof. These clauses amend the recent Policing and Crime Act 2009, and they are baffling since the Minister told the Joint Committee on Human Rights in March last year that the Government had no intention of covering children and young people explicitly. My party has long argued that antisocial behaviour orders, or ASBOs, should be a last resort. If overused-there are parallels here with the so-called “gangbos”-they become ineffective and costly and potentially criminalise a generation of young people.

These gang injunctions seem to me to repeat many of the same mistakes. They again blur the line between criminal and civil law. They criminalise young people without any thought as to how or why they find themselves caught up in the dark world of gang-related violence, and they simply mimic many powers that are already on the statute book. Furthermore, they give the courts powers to impose draconian orders on young people who breach these injunctions. As Liberty has so aptly put it, we are, in essence, talking about

“a mixture of control orders and ASBOs”.

It is staggering that the Government are intent on expanding these types of orders for children, and we shall certainly seek to amend these provisions in Committee.

Part 7 makes the issuing of a parenting order mandatory upon the breach by a child of an ASBO. Parenting orders, in themselves, are often beneficial, but we are concerned that these provisions may result in such orders being used as a last resort, at the point when a child has already been criminalised by breaching a discredited and overused ASBO; ideally, parenting orders should be used well ahead in this process. These measures do nothing to address the root causes of antisocial behaviour before they get out of hand. We need to catch children early, create schemes that divert them away from crime and antisocial behaviour, and get them to take responsibility for their actions when they stray, particularly through restorative justice schemes and neighbourhood justice panels.

On part 8, we thoroughly dislike the licensing regime for wheel-clamping businesses operating on private land. I see no justification for yet another licensing regime, so let us instead opt for a simple Scottish-style solution and declare such clamping illegal entirely, as it is tantamount to extortion. We should not be attempting to clean up this industry’s act by providing a licensing regime.

Finally, I turn to parts 2 to 4, which concern the DNA database. To say that the Government’s proposals are a disappointment is an understatement-they are a scandal. They have roundly failed to address any of the concerns outlined in the European Court of Human Rights ruling in the case of S and Marper about the “blanket and indiscriminate nature” of the database. The UK has the largest DNA database in the world; it is far larger than its American counterpart, despite the population of the United States being so much bigger. Our database contains records from more than 5.5 million people, almost 1 million of whom are innocent-they have no record on the police national computer-and almost one in two of all black men are on the database. This is little more than a random accretion of profiles from anybody who happens to run into the police. We have heard in great detail, particularly from the Chair of the Select Committee on Home Affairs, how difficult it can be, depending on where one lives in the country, to get one’s details removed from this database, even when one wants to do so.

As I briefly mentioned, in December 2008 the ECHR ruled that the retention of the DNA samples of two men who had not been convicted of any crime-S and Marper-was illegal and violated their right to a private life. The Court ruled that

“the retention in question constituted a disproportionate interference with the applicants’ right to respect for private life and could not be regarded as necessary in a democratic society”.

Its ruling that this was not necessary in a democratic society is a staggering criticism-it said that the UK Government have collected the most personal information from innocent people in a database that is not fit for a democratic society. Yet, rather than be humbled or chastened by that, the Government are presenting proposals that fly in the face of the ruling. It seems that they would rather continue their dangerous obsession with creating massive and illegal databases of any information they can get their hands on than accept that they were wrong and that they have gone beyond the law.

The effectiveness of the DNA database for innocents as a tool for fighting crime is itself highly questionable. Figures have shown that despite the huge increase in the number of profiles on the database from 2.1 million in 2002 to 5.6 million at the last count, the number of detected crimes for which a DNA match was available-we are not even talking about it being crucial to the conviction-has fallen from 21,098 to 17,614 last year. That does not surprise me because, as I said, the database is random. It includes 1 million innocents and excludes more than 2 million people who were convicted before the database began. One sensible aspect of these proposals is to collect the DNA of such convicts. We will support that. There seems to be an absolutely clear basis for ensuring that that goes ahead.

The evidence provided by the Government to support the retention of the DNA of all innocent people for six years is a shambles. The so-called evidence in the consultation paper was based on an extremely small sample of research carried out by the Jill Dando Institute of crime science, which its own director later noted was incomplete and based on data to which the institute was not given direct access. The director stated that it

“was probably a mistake with hindsight, we should have just said ‘you might as well just stick your finger in the air and think of a number’”.

Further criticism came from Professor Sheila Bird, a vice-president of the Royal Statistical Society, who said that the consultation’s

“use of statistical science does not enhance public trust”

and that

“misleading statistical arguments in public consultations should be regarded as a statistical felony”-

the statistical equivalent of “lying to the House”.

All the Home Office has done is halve the period proposed in the consultation document, as if splitting the difference were a substitute for evidence. The Home Secretary said today at the Dispatch Box that there was tremendously important evidence that would support his evidence and that, as we speak, it is in the process of being peer-reviewed. I have news for him-there is a difference between something appearing in a learned journal once it has been peer-reviewed and something that is going through the process of peer review.

If research is going through the process of peer review, it has not yet been accepted for publication in a learned journal. That process can involve a substantial amount of revision on the part of the authors. If, after getting its fingers burned in the case of the consultation paper and the Jill Dando Institute, the Home Office has not learned not to present to the House a load of half-baked evidence, it damn well ought to have done so. The Home Secretary ought to know that he should come here with evidence that is incontrovertible and based on research that is published in a learned journal, not something that he hopes will support his point of view at some time in the future.

Our preferred alternative is a strict split between innocence and guilt. If a person is found guilty of a crime, their DNA is retained on the database. If they are not convicted of a crime, their DNA is removed from the database at the end of the investigation. It is as simple as that. The principle of being innocent until proven guilty is the cornerstone of our criminal justice system. I have seen nothing in any of the so-called evidence provided by the Government today to convince me that we should abandon that principle now.

To conclude, the inadequate DNA proposals loom so large over the entire Bill that although there are positive elements elsewhere, it is well overdue for the Government to take seriously their obligations towards the European convention on human rights not just in this matter, but in the matter of sections 44 and 45 of the Terrorism Act. They should start with the Bill. The DNA proposals fail to respect the right to private life. They sacrifice the presumption of innocence over guilt on the basis of a cooked consultation. They are an affront to British traditions of hard-won liberty and justice. I am sad to say that for that reason, despite some of the positive provisions in the Bill, we will not support it this evening.