PARLIAMENTARY DEBATES HOUSE OF COMMONS OFFICIAL REPORT GENERAL COMMITTEES

Public Bill Committee

PROTECTION OF FREEDOMS BILL

Second Sitting Tuesday 22 March 2011 (Afternoon)

CONTENTS Examination of Witnesses. Adjourned till Thursday 24 March at Nine o’clock.

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The Committee consisted of the following Members:

Chairs: †MARTIN CATON,MR GARY STREETER

† Baker, Steve (Wycombe) (Con) † Johnson, Diana (Kingston upon Hull North) (Lab) † Blackwood, Nicola (Oxford West and Abingdon) † Johnson, Gareth (Dartford) (Con) (Con) † Opperman, Guy (Hexham) (Con) †Brake,Tom(Carshalton and Wallington) (LD) † Robertson, John (Glasgow North West) (Lab) † Brokenshire, James (Parliamentary Under-Secretary † Shannon, Jim (Strangford) (DUP) of State for the Home Department) † Tami, Mark (Alyn and Deeside) (Lab) † Buckland, Mr Robert (South Swindon) (Con) † Watson, Mr Tom (West Bromwich East) (Lab) † Chapman, Mrs Jenny (Darlington) (Lab) † Wright, Jeremy (Lord Commissioner of Her Majesty’s Treasury) † Chishti, Rehman (Gillingham and Rainham) (Con) † Coaker, Vernon (Gedling) (Lab) Annette Toft, Rhiannon Hollis, Sarah Davies, † Efford, Clive (Eltham) (Lab) Committee Clerks † Ellis, Michael (Northampton North) (Con) † Featherstone, Lynne (Minister for Equalities) † attended the Committee

Witnesses

Dr Eric Metcalfe, Barrister and Director of Human Rights Policy, Justice

Tim Moloney, QC, Barrister, Criminal Bar Association

Isabella Sankey, Policy Director, Liberty

Mark Stobbs, Director of Legal Policy, The Law Society

Anne Hunter, Director of Operations, Independent Safeguarding Authority

Sunita Mason, Independent Advisor for Criminality Information Management

Sir Roger Singleton, Chair, Independent Safeguarding Authority

Terri Dowty, Director, Action on Rights of Children

Dr Helen Wallace, Executive Director, Genewatch UK 47 Public Bill CommitteeHOUSE OF COMMONS Protection of Freedoms Bill 48

Vernon Coaker: One of the things that might be Public Bill Committee helpful is to be specific with the sorts of things that we would like the surveillance commissioner to look at, Tuesday 22 March 2011 because certain questions were asked.

James Brokenshire: I certainly agree with the general (Afternoon) desire to get some feedback and thoughts from the commissioner. Clearly, we cannot compel the commissioner [MARTIN CATON in the Chair] to respond or to answer—that is not the nature of the Committee—but we can request some feedback and, Protection of Freedoms Bill perhaps, some written evidence that could be submitted 4pm as part of the Committee’s consideration. Obviously, I will endeavour to keep the Committee updated. If there The Committee deliberated in private. are further issues, we can return to them. 4.9 pm On resuming— The Chair: Perhaps the usual channels, with the advice The Chair: Before we come to the questions for our of the staff of the Select Committee on Home Affairs, witnesses, you wish to raise a point of order, Mr Coaker. could draft suitable questions. That is agreed. Our apologies to the witnesses for that short delay. Vernon Coaker (Gedling) (Lab): On a point of order, We will now hear oral evidence from Liberty, Justice, Mr Caton—I apologise to the witnesses, but I will only the Law Society and the Criminal Bar Association. delay everyone for one minute. This morning, in our Before calling the first Member to ask a question, I deliberations on the provisions of the Bill vis-à-vis the remind all Members that questions should be limited Regulation of Investigatory Powers Act 2000, the to matters within the scope of the Bill. We must stick interception of communications commissioner came strictly to the timings in the programme motion agreed and told us his views about how the provisions of the by the Committee. I hope I do not have to interrupt Bill will operate with respect to RIPA and his responsibilities. mid-sentence, but I will do so if I need to. I call Vernon His responsibilities deal with communications. Coaker. From the questions and comments that arose this morning, I think that the Committee would have liked to ask the relevant surveillance commissioner about the Q152 Vernon Coaker: Good afternoon, everyone. operation of RIPA. Clearly, we were not able to do that. Thank you for coming. Through the usual channels—the Government Whip First, may I ask each of you to say generally what you and the Opposition Whip—we sought the attendance of feel about the provisions in the Bill with respect to the surveillance commissioners at our deliberations, but CCTV? What do you think of the balance that the Bill it was felt to be inappropriate. That is their decision, seeks to strike between protecting communities’ freedom which I can understand up to a point, but it would be from crime, detection of crime, reducing fear and so on, helpful to the Committee if we could ascertain the views and civil liberties? Does the Bill go far enough or too of the chief surveillance commissioner on the provisions far? What general comment do you have on the CCTV in the Bill—whether they see a problem, whether they provisions in the Bill? think the provisions are good or whether they would Isabella Sankey: Thanks to the Committee for inviting like to see the Bill amended in any way. Liberty to give evidence today. On the CCTV provisions I suggest to the Committee—hopefully the Minister in the Bill, we have long been calling for better regulation. will be able to say something positive—that we should As the Committee will be well aware, we have seen a contact the chief surveillance commissioner and ask sharp increase in the number of CCTV cameras that are whether he can provide the Committee with answers to up around this country, over the past 10 years in particular. certain questions that would aid our deliberations and At the same time, we have not seen an increase in our consideration of the Bill. If the Minister could regulation. We are concerned about not only the number agree to that, it would be extremely helpful. of cameras, but the innovations, such as facial recognition technology, microphones and loudhailers being attached The Parliamentary Under-Secretary of State for the to cameras, automatic number plate recognition cameras, Home Department (James Brokenshire): I hear what the and so on. Regulation has not kept pace. The Data hon. Member for Gedling has just said about information Protection Act 1998 and the Human Rights Act 1998 for the Committee. The commissioner was asked if he apply to most CCTV cameras in terms of the use and could attend and give evidence, but unfortunately he was processing of images, but the principles in those Acts not available. I am certainly happy to refer the commissioner were not designed to deal with the sophisticated types to what was asked in Committee about his views in of CCTV that we now see on the streets. respect of the RIPA provisions, and to ask what he might be able to provide to the Committee in terms of In particular, you have mentioned crime and fear of setting out his thoughts and his response. If that would crime, which Liberty is very alive to. We are concerned help the hon. Gentleman, I am happy to take that away that public expectations about the role that CCTV can and to update the Committee once we have done that, play in keeping them safe are somewhat out of step with letting the Committee know what information we have the reality. That is not to say that it cannot be extremely been able to secure. useful in detecting crime and leading to convictions. Of course, there have been several high-profile cases in The Chair: Is the Committee happy to proceed on which CCTV has been used, so we are not against it, those lines? and I do not think any sensible person would be. 49 Public Bill Committee22 MARCH 2011 Protection of Freedoms Bill 50

The idea, however, that CCTV is a silver bullet that to us that there ought to be a proper debate about where prevents crime is frankly not borne out by the evidence, the balance should be and what those codes should which was commissioned by the Home Office under the contain. previous Government to investigate its effectiveness in Tim Moloney: The Criminal Bar Association also deterring crime. At best, it might displace it. The images thanks the Committee for inviting us to give evidence that are collected—certainly in the past—are often not today. We recognise that it is very difficult to quantify of sufficient quality to lead to successful detections and the effects that CCTV and ANPR might have on the convictions. We are concerned that the public have a prevention, detection and investigation of crime. general idea that CCTV is a silver bullet, and that it will Nevertheless, we are also conscious that there have been keep them safe. Everyone should be seriously concerned a number of high-profile cases where it has been of use if that means that people are walking down deserted in such prevention, detection and investigation of crime. alleyways at night because they see a camera. Making We feel that the current proposals, with the code of people feel safer when in fact they are not is surely no practice, represent a positive start in maintaining some public policy goal. We welcome the Bill’s provisions on sort of regulation of the use of those cameras, and we additional regulation. It could certainly go further on endorse what others have said in that regard. enforcement, but I wanted to make that point about fear of crime, as well. Q154 Vernon Coaker: The debate about CCTV is Dr Metcalfe: I agree with everything that Isabella has interesting. I can understand about the code of practice said. Our organisation has a significant concern about and so on, but as a constituency MP nobody has ever the growth in private surveillance. It is understood that complained to me about CCTV, apart from complaining public bodies are bound by their obligations under the that there is none. That is just a comment, really. Human Rights Act, which, as Liberty has pointed out, Although people have complained to me about other is a rather blunt instrument when it comes to specific areas of the Bill, it is interesting that the public perception questions on the placement of a camera, where it can of CCTV and ANPR is that they are not a real problem, look, times, and so on. and yet they generate a huge amount of debate. For your information, because I think we were surprised, according to the evidence we had this morning the Bill Q153 Vernon Coaker: So you would like to see the covers 29,000 cameras, and the Association of Chief Bill extended to include private space, because at the Police Officers’ latest estimate is that there are 1.8 million moment only the police and local authorities are contained cameras, not 4.2 million. Clearly, for us as a Committee within it. there will be a large debate about what all of you have Dr Metcalfe: Police and local authorities. Private just said about the impact of CCTV and whether the companies are bound to the extent that the Data Protection code of practice should apply outside of just the police Act imposes certain obligations in relation to data and local authorities. In that regard, the Bill also proposes processing. But there is nothing in the data protection to have a surveillance camera commissioner. Why would framework, for example, that can tell you whether the we not just extend the remit of the Information Tesco that you might happen to live next door to has Commissioner? The Information Commissioner already five or 50 cameras on its car park. Surely such matters has a code of practice. Why not amend that and put require better regulations than the current ones. A very that together rather than create another bureaucratic poor patchwork of laws governs this area. body—another quango? Do you not think that would When we prepared our written evidence, we could be a better way of doing it, if we are going to have this not comment in detail on the regulation under the code of practice? clauses because the code had not been published. I am Mark Stobbs: I think the Law Society would support pleased to see that that has now been done and a very that. There is a danger of there being far too many good consultation paper sets out how the code was codes of practice, operated by too many people. We drafted and why it was put in those terms. It seems to would certainly say that the Information Commissioner hint that regulation of private CCTV will be something was well placed to do that. to be done gradually in future. We certainly hope that Isabella Sankey: Similarly, we would support giving that will be taken on. The point is that any private this responsibility to the Information Commissioner. individual may put a camera, or 60 cameras, on their One thing that I would say to the Committee is that land, and in principle there is no legal barrier to doing currently we believe that the Information Commissioner so. If we are serious about protecting privacy in this is under-resourced and has overly restricted powers country, we must be more keen to have much better of enforcement in discharging many of the functions of regulation of how CCTV can be established and used. that office, so if he is going to be given additional Mark Stobbs: I think the Law Society would endorse responsibilities, he would certainly need to have the all those points. Our understanding is that 90% of resources and capabilities to match it. We would not CCTV cameras are outside the public sector, and a want to remove from the Bill another commissioner number of those are in premises where members of the who would get resources without having those passed public go frequently, such as stores and sports grounds. on to the Information Commissioner. It seems to us that an opportunity has been missed to I want briefly to address the point that you made apply these to the private sector, at least in those areas earlier, Mr Coaker, about constituents not being concerned where substantial numbers of members of the public about CCTV. At Liberty we have a pretty different attend. experience, and it might just be that people are more We are also a bit disappointed that this is all done by likely to contact us about this. Quite recently we had a codes of practice. There is a very limited opportunity case, which was widely reported, of Muslim residents in for parliamentary scrutiny of those codes, and it seems Birmingham who discovered that their local authority 51 Public Bill CommitteeHOUSE OF COMMONS Protection of Freedoms Bill 52 had been responsible for putting up a ring of steel—CCTV 1,000 cameras in Britain in 1970. Now, per capita and in cameras—around their community so that nobody could absolute terms, we have the most CCTV cameras on enter or leave without being monitored. I think that earth. The BBC recently did a study, which found very clearly makes the point that without sufficient that there were more CCTV cameras in the Shetland regulation these cameras can be used inappropriately, islands than there were in the city of San Francisco. The and particularly in a discriminatory way. Shetland islands have 22,000 people and San Francisco That is something that you often see with incursions has 3 million people. That says something about the into the privacy sphere. There is this well-worn phrase lack of regulation in this country. that we have had a lot over the past few years at Liberty: You do not necessarily need a criminal offence specifically “Nothing to hide, nothing to fear.” Our experience is for invading privacy—that would probably be too broadly quite different; it is those minority groups—those groups drawn to be satisfactory—but you could have a code of that might at any one time be unpopular—that are practice backed by a series of regulatory offences. For often on the sharp end of these privacy intrusions. We example, a person responsible for a CCTV camera saw that community become very much alienated and could be obliged to notify the Information Commissioner’s disillusioned, with all the consequences that flow from Office if they had one on their property. Failure to do so that. I think that there is concern, but it is not necessarily could be a regulatory offence and could be backed by as widespread as concerns about other things. criminal sanctions, depending on the seriousness. There Dr Metcalfe: It is an important point: most people do are criminal offences under the Data Protection Act, not appreciate the importance of privacy protection but they are rather difficult to apply to a lot of CCTV. until it is not there, just as most people in this country You can go down a variety of routes with a code of probably did not worry a great deal about the security practice. It could be a soft code or we increasingly find a of data transfer between different Government Departments lot of areas of law in which a code has almost the force until 11 million families got a letter from the Treasury of law. You could come up with a lot of different explaining that their personal data had been lost in the alternatives. We will respond to the CCTV code of mail. It is about those kinds of concerns. You or a practice in due course, but we certainly think that there constituent may not care a great deal or worry about is a very good case for having some force of law behind CCTV until a neighbour’s CCTV camera captures footage it beyond a voluntary sign-up, and certainly for extending that is put on YouTube. Then, they may be very concerned it beyond the public sector. about what can be done by way of CCTV. It is at that Mark Stobbs: There is also something about the use point that they will look to their MP and say, “What to which the images taken are put. I agree that we do were you doing about the ability of my neighbour, or a not want to make everything a criminal offence, and private company, to put up CCTV cameras in the first there may be regulatory sanctions that can apply.Ultimately, place?” there may be particular invasions of privacy that do need a criminal sanction, and it seems to the Law Q155 Vernon Coaker: I take your point, and you can Society in particular that by simply putting a code of point to that abuse. I was interested in the role of the practice in place, the Bill is putting in something that Information Commissioner perhaps being married to can be watered down, that can be ignored. If there is this rather than creating a new body. Given what you not some sort of sanction somewhere, you wonder what have just said about CCTV and the fact that the code of the point is. practice is just a code of practice and has no teeth, would you like real power to be given to whomever is The Chair: Your answers on CCTV have stimulated responsible for regulating CCTV, so that it does not the Committee: I have four bids for supplementaries. become, “This is good practice,” but becomes an offence Could Members be as quick as possible, and if what for people to do certain things? What would the offence you wanted to raise has been dealt with, let me know be? I always find this really interesting, because everyone and we will be able to move on. says that we should criminalise it, but you are the lawyers, so what would the offence be? Is putting up Q157 Steve Baker (Wycombe) (Con): There seems to CCTV invading someone’s privacy? Is that not already be a tension in the arguments that we have heard. against the law? CCTV is often not sufficiently effective to be useful, but Dr Metcalfe: There is not a criminal offence per se of we are worried about developments in technology such invading someone’s privacy. It is an area of law that, as face recognition, and about privacy. We hear with respect, Parliament has long dodged. philosophical objections on the basis of privacy and then we hear an argument that is empirical. What should be the fundamental object of any law relating to Q156 Vernon Coaker: That is why I am asking and CCTV? why we have you here. We have our own lawyers. Isabella Sankey: I would say that the fundamental Dr Metcalfe: I will give you an example: 41 years ago, object has to be, first, to look at the number of cameras. in 1970, we published a report saying: There is an argument to be made that the Bill could go “English law does…provide a remedy for intrusions into privacy further in ensuring that, certainly in the regulation of but is not adequate to meet the activities of a society which is public authorities’ use, there is a set limit to the number perfecting more and more sophisticated techniques for intrusion.” of cameras that a public authority can use. If it wants to When computers were the size of people’s living go over that limit, it should have to make an argument rooms we were saying that there was a growing problem about why it is necessary and proportionate to have with data gathering powers. Our legislative codes have additional cameras. Of course, that would be quite been outstripped by the growth of technology in this difficult in the private sphere, but it could certainly area. You could probably say that there were fewer than apply to public cameras. 53 Public Bill Committee22 MARCH 2011 Protection of Freedoms Bill 54

On other areas of regulation, what is currently envisaged case is probably the biggest case where a CCTV camera in the code is certainly a movement in the right direction helped with the conviction of the people who killed that about how images are used, and the standards that need young boy. For every good story, there is a bad story. I to be enforced as regards who is looking at and processing accept that. But as we have seen with previous speakers, the images. Those are all areas that need proper perception appears to be everything. Are you not putting regulation—in fact, quite similar to what the Information forward a line with which most people in the UK would Commissioner currently has in his voluntary codes. The disagree? key point has already been made that, if this going to be Isabella Sankey: This is a debate in which there has a positive step forward, there needs to be a better not been a huge amount of evidence and there has been enforcement mechanism than is currently in the Bill. As a lot of rhetoric. Certainly over the past few years and, others have said, the code could quite easily be ignored if I may say so, under the previous Government, there without any substantial repercussions. was definitely a drive to engender support for CCTV Dr Metcalfe: The starting point is that CCTV is a among the public. It is a quick fix to say, “We’re going form of public surveillance. It should be discouraged, to install some CCTV.” because surveillance is an interference with privacy. There are certain situations when it is absolutely justified Q159 John Robertson: So you are saying—let me get to interfere with privacy—for example, CCTV in an this right—it was the previous Government who wanted airport. That is a security zone and it is reasonable to CCTV cameras and they were influencing the public have security in that situation. But, as a general rule, into wanting them. Is that what you are saying? you have to show that it is necessary and proportionate. I agree with Isabella that you need to have a framework Isabella Sankey: There was certainly a lot of money constructed around the idea that CCTV should be made available for CCTV cameras under the previous scaled back, because it is not possible to do an assessment Government. I am not denying that members of the of each individual CCTV camera in the United Kingdom, public are asking for CCTV to be put up. but I am willing to bet that the reason why the United Kingdom has the most in the world is not because we Q160 John Robertson: Why are they doing that? made such a judgment in each and every single case. I Isabella Sankey: I think it is an understandable human think we have that situation because there has been a reaction. When you see a high-profile case where CCTV general idea in the public mind that CCTV helps fight has been useful, you think that this is going to help to crime, and it has been exploited by private security protect me and make me safer. From a human psychology companies that are very keen to sell on new technologies. point of view, I do not think that is something you can Mark Stobbs: We would go first to article 8 of the quibble with. I am saying that the evidence on how European convention on human rights about the useful CCTV has been compared with other crime fundamental principle of respect for private life, and say detection and prevention measures has not been properly that there needs to be some clarity. There needs to be a explored and explained to members of the public. So proper debate about what you can and cannot put up, you have had a debate that has basically been mediated and what you can and cannot look at or pass on to through a number of high profile and extremely emotive other people. That should be the main aim of the law. cases, which, understandably, will make people feel that You can have a debate about where or when that should they are more secure with CCTV. be, but leaving it to a code of conduct or a code of practice seems to be ducking the issue from Parliament’s Q161 John Robertson: But you used a case to do the point of view. opposite, so you are also perpetrating the same kind of Tim Moloney: The aim of any legislation should be thing. You used an example of a case where there was to strike a balance between the interests of the individual an overuse of cameras, and your colleague sitting beside in terms of privacy and the interests of society in terms you talked about how the local community was entrenched of the prevention of crime. To that end, the legislation with cameras. Is that not the same kind of emotive should be designed to ensure that any information is speak? used properly and that cameras are used properly. The Isabella Sankey: I would not say so. I was giving you code of practice should seek to strike that balance a factual account of a case that Liberty successfully between the interests of the individual and of society. took and challenged. As you have said, Mr Robertson, for every good case there is a bad case. Just to be clear, we are not against CCTV cameras. As with many of the Q158 John Robertson (Glasgow North West) (Lab): issues in the Bill, it is not a question of being for or Ms Sankey posed the question of looking at the number against DNA retention, CCTV, or the vetting of people of CCTV cameras. Do you accept that the question is who are going to work with vulnerable adults and not so much about the number, but about why people children; it is about getting the right checks and balances feel that they have to have as many CCTV cameras as and making sure that where there are invasions of they do? I was on a radio programme once with a people’s privacy, there is some sort of regulation to professor who basically took the same line as you. It make sure that those who do come off on the worse end was a number of years ago, so there were far fewer of things have some sort of protection. cameras then, but the fact of the matter was, and he agreed, that a CCTV camera was perceived to give security. I know that, as does my colleague. I have never Q162 John Robertson: Who would that be? had anybody complaining to me about the number of Isabella Sankey: I have already given you one example cameras, but I have had plenty of constituents saying, of a community that was very much alienated by the use “We want them.” In relation to what you are saying, of CCTV. Liberty has previously taken the case of a why would that be? At the end of the day, the Bulger man whose suicide attempt was caught on a CCTV 55 Public Bill CommitteeHOUSE OF COMMONS Protection of Freedoms Bill 56 camera, which was then shown on national television. Q165 Gareth Johnson: Forgive me, Dr Metcalfe, but You can well understand that that was particularly if I want to put up a CCTV camera in my house, difficult for that individual, and we successfully took his covering my back garden, what has that got to do with case as well, which found that there should be better Government? regulation about how images are used. But we are not Dr Metcalfe: The problem is not so much when it is for a second saying that CCTV has never been useful looking at your backyard, but what happens when it and will not be useful in future. It is simply about points into your neighbour’s backyard. having the protections. Q166 Gareth Johnson: But the example I gave, which you would actually ensnare with the— Q163 The Chair: We have dealt with that at some length in two different questions, so we will move on. Dr Metcalfe: The Government have an interest if Forgive me, but we have a lot of questions to try to get there is a capacity for you to turn the camera 90° and through. look into your neighbour’s backyard.

Gareth Johnson: We could go backwards and forwards Q164 Gareth Johnson (Dartford) (Con): First, I declare on this, Chair. I will let someone else speak. an interest—I am a practising solicitor. In case there are any interests that come to the fore, I declare that now. The Chair: Most of our witnesses have not responded. I agree with some of the points made earlier about If you agree with what another witness says, please do the public not fearing the proliferation of CCTV. It is not feel that you have to add to it. Also, I appeal to the unregulated nature of CCTV that the public seem to Members to keep their questions as brief as possible, or be concerned about. Can I ask you to concentrate on we will not get through anything like the number of one area you brought up, Dr Metcalfe? You mentioned questions we need to get through. the issue of Tesco having cameras around its car park. Do you not agree that, if we start getting into the area Q167 Michael Ellis (Northampton North) (Con): of regulating private cameras in private areas, we are Am I right in characterising the argument here, from going into an area where we will inevitably find difficulties, the perspective of all four of you, as being one of from the man in the street who wants to point a camera proportionality? I see all four of you nodding. I noticed at his car to ensure that he can identify anyone who has that you focused on the codes of practice and there was been targeting it to people holding camcorders and so a general desire to see them being enforceable. Is that on? There will be all sorts of difficulties if we start also right? Is it not the case that there are many other regulating private individuals using private cameras on areas in life where there are codes of practice and that private land. Although I understand why you use Tesco they work perfectly well without the possibility of criminal as an example—I think that we can all get that example—it sanction. I should declare an interest myself, as a member will also include a lot of people who are purely going of the Criminal Bar Association. For example, I am about their innocent business and want to do the right thinking of the Police and Criminal Evidence Act 1984. thing, but they will get ensnared in that trap that I think That is a bulwark of criminal legislation even now, and you may well set for them. it has very important codes of practice—does it not?—that Dr Metcalfe: Straight off the bat, fortunately at the are not enforceable in terms of criminal sanction. A moment you can distinguish between camcorders and a breach of that Act’s very important codes of practice CCTV system, for the reason that one is self-contained might damage a prosecution, but it cannot be punishable and one is networked. We use CCTV closed camera by criminal sanction. So there are examples of codes of circuits, but in this day and age most of what we think practice that work pretty well without yet another law, of as surveillance cameras are not closed circuit. They are there not? are networked, linked and they are accessible to a much Dr Metcalfe: The PACE code seems to be quite larger category of people than we are normally aware clearly oriented towards evidence gathering. The police of. want to comply with the PACE codes, because they do I agree that if you were going to regulate the private not want to undermine their ability to prosecute the use of all photography it would be a nightmare, but we person they have arrested. It does not seem to me that are not talking about that. We are talking about the there is an easy read-across to a situation of private regulation of the private use of surveillance powers and surveillance. I think that, as the current News of the World investigation shows, there is very good reason to be concerned about Q168 Michael Ellis: For Tesco, or any other supermarket, private individuals and private companies using surveillance would it not be in their interests to comply with the technology. code of practice? We talk about offences. Would it not For example, Parliament has already made it a criminal open the supermarkets up to the possibility of civil offence for a private individual to intercept a communication action on the part of an individual who is subject to without a warrant. That is an example of how Parliament this? has already got into the business of regulating private Dr Metcalfe: We have been talking in terms of sanctions, communications and private surveillance. What we are and civil liability is obviously a form of sanction. I am saying is that it makes no sense for Parliament to sure that Tesco would pay attention—probably more regulate phone hacking by private individuals but not attention. It is very difficult to bring criminal prosecutions to regulate the News of the World if it wanted to put up against companies in lots of areas, particularly if you a CCTV camera in your backyard to film footage there. are looking at fines, for example—whether the fine is That seems to me a strange set of affairs. rendered as a regulatory route or otherwise. 57 Public Bill Committee22 MARCH 2011 Protection of Freedoms Bill 58

Q169 Michael Ellis: Do you agree with me that the somebody else, you would expect a judgment to be establishment of codes of practice might well have a made depending on the number, the size of the organisation, salutary effect on such companies, in terms of their and the extent to which you would expect it to take care. conduct with CCTV cameras? Dr Metcalfe: If they were bound by them, but that is Q172 Rehman Chishti: What would you say is the not what is being proposed in the consultation at the bottom end and what is the top? moment. Mark Stobbs: I think I would need to come back to you on that point. It will vary. The sanction you might Q170 Michael Ellis: As far as criminal sanctions are put on, say, Tesco would be very different from somebody concerned, that would not apply either, unless it was who has been putting something on their neighbour’s specifically added to legislation. garden, I would suggest. Dr Metcalfe: The point is not whether some codes of The Chair: We need to move on to RIPA. practice work well without criminal sanctions, because it may well be the case that they do. I do not agree with Q173 Michael Ellis: I am asking about the Regulation you on the PACE example, because it seems to me that of Investigatory Powers Act 2000 now. There is a that is oriented very much towards a criminal justice requirement in the Bill for judicial approval for obtaining model, which does not seem to me to apply in this and disclosing communications data to local authorities. situation. We are talking about this particular case, What are your views on that? Do you think, for example, given the massive growth of CCTV—I have to make that that goes far enough? the point again that there are more CCTV cameras in Dr Metcalfe: We very much welcome that. It is something the United Kingdom than in any other country in the that we have long expressed concern about. Our concern world. China has 1.4 billion people, but it has fewer is shared by members of the public as well, particularly cameras than we do. given the recent example from Poole borough council, Isabella Sankey: I agree with every point that Dr Metcalfe which was found to be surveilling a couple who may makes there, and in particular, I agree that PACE is not have been sending their child to a school out of zone. a good comparator in this case, because of the criminal That is an example of the ludicrousness of surveillance justice element that this does not have. I also add that, powers being used by public bodies for purely regulatory for several years now, the Information Commissioner’s matters. Office has had voluntary codes of practice that we We think that judicial authorisation is an extremely know anecdotally are not being complied with and important mechanism. Where we would invite Parliament there are very few enforcement possibilities. Re-enacting to go further is to extend it to other areas of surveillance. that with no possibility of criminal or civil sanction We have a patchwork of surveillance authorisation would not, I think, necessarily spur authorities on in under the Regulation of Investigatory Powers Act. complying with the guidance. Sometimes you speak to people about RIPA, and they say that RIPA was a very human rights-friendly piece of The Chair: I am afraid that this will have to be the last legislation, which was enacted shortly after the Human question on CCTV, or we will not get anywhere near to Rights Act 1998 and was developed in a very considered completing our agenda. way. We would say that RIPA is a crude patchwork of different forms of regulation knitted together in one Q171 Rehman Chishti (Gillingham and Rainham) very ugly statute. Youend up with a number of absurdities, (Con): I too declare an interest, because I am a member whereby, for example, if a policeman wants to put a bug of the Bar and a door tenant at 18 Red Lion Court. I in your house because he is investigating serious organised want to go to one point with regard to everyone on the crime, he needs to get the authorisation of a surveillance panel except Tim—that there needs to be a code. Can I commissioner, who is usually a judge. If MI5 wants to have a view from all of you on what you consider would put a bug in your house, because it is considering a be an appropriate sanction for a breach of that code? threat to national security, it gets authorisation from Can we start with you, Mr Moloney? The reason I the Home Secretary. What is being proposed here is that begin there is because, in the past 13 years, there has if a local authority wants to use surveillance powers—it been more criminal legislation than we had in the cannot do bugging, of course—it would have to go to a previous 100, and it is often not the case that criminal magistrate. legislation is the right way forward. We think that judicial authorisation should apply Tim Moloney: As I said at the start, we consider the across the board. It is no different in principle from a code to be a useful starting point, and it can only be search warrant. If the police want to search your house, beneficial in terms of the regulation of people who use they need a warrant from a judge. If the police, or any CCTV in this way. We would not be calling for any other public body, want to put a surveillance device in criminalisation of breach of the code at this stage. We your house, they should also get a warrant from a judge. would respectfully take the same view that perhaps we The good thing about what is being proposed is that it should look and see how the code works to begin with. sets out that important first step. The problem is that we If there were then a perceived need for criminalisation are not going far enough. We are addressing one aspect of breaches of the code, that could be revisited in the of a problem that has been highlighted when it needs future. I would not, however, be suggesting any particular root and branch reform. criminalisation at this stage, or any particular penalty for a breach of the code. Q174 Michael Ellis: There are a number of examples, Mark Stobbs: The sanction has to depend on the such as the local authority that acts in a disproportionate seriousness of the breach and, in particular, on the way against someone who was allegedly sending their effect on the individuals. If there were a significant child to a school outside the catchment area, or the bin misuse of images, or if images were mislaid or leaked to police and all this sort of nonsense. You agree that these 59 Public Bill CommitteeHOUSE OF COMMONS Protection of Freedoms Bill 60

[Michael Ellis] back to the sample to make new profiles. None the less, that is one core concern—a concern that a public body provisions would have an advantageous effect on that has more information about you than it needs. type of behaviour and conduct by local authorities. You are supportive of that. I see you all nodding on that Q177 Clive Efford: And that is your primary concern? point, but you would like to see it extended to a wider area? Dr Metcalfe: That is a primary concern. The secondary Isabella Sankey: Absolutely. I agree with the examples concern is that it is a marker of suspicion. That is not that Dr Metcalfe gave on how patchwork the current information that the Government need to have about regime is as regards different types of surveillance and you if you are innocent; none the less, it is being stored, different bodies using that surveillance. We see no reason which therefore leads other people to think, “I know why there should not be prior judicial authorisation for that your DNA is being held on the police national all types of targeted surveillance that are available under computer. That gives rise to suspicions in my mind.” the Act. One recent high-profile case of police infiltration You as an innocent person should be free of such of environmental protest groups has brought people’s suspicions. attention to how lax the current self-authorising regime Isabella Sankey: Innocent people who contact us, is—indeed, the current head of the Association of Chief who have their DNA profile and, as Dr Metcalfe says, Police Officers has called for prior judicial authorisation samples currently retained, are concerned about all the for the use of covert human intelligence sources by the things Dr Metcalfe mentioned, such as stigmatisation. police. When you have the police asking for prior judicial In addition, however, whereas they might not know authorisation and better regulation of the use of these their parentage or ethnicity, the police have access to powers, it should be incumbent on the Government to material that can tell them that information. There are look at going further in the Bill. many different concerns. Whether they are going to feel concerned is quite personal and unique to each individual. The Chair: If there is nothing more that any witness We know that some people do not—some people volunteer wants to add on that, we will move on to the next to go on the database. The point from our side is that it subject, which is collection and retention of biometric is up to the Government to get right the framework for data. DNA retention, so that innocent people who do feel concerned do not have their DNA retained indefinitely. Q175 Clive Efford (Eltham) (Lab): Can you say whether the Bill meets your concerns about the retention of Q178 Clive Efford: I assume you are not far away DNA profiles? This morning, ACPO told us that the from that position. I will add something else, and you change is not without consequences. Do you have any might like to comment when you have finished on what concerns about the ability to identify and prosecute I have asked already. I am told by the Forensic Science those who have committed crimes as a result of these Service providers that they process people’s DNA in changes? batches of about 80 samples, with some control samples Dr Metcalfe: We do not think that it will affect the in there. They are held in those batches it is not possible ability of the police. With respect, I differ with the to differentiate one from the others, in the sense that senior police officers who no doubt gave evidence this they could destroy one. If there is one in a batch that morning that it will make a significant difference to the has to be held indefinitely because someone has a ability of the police to prosecute crimes. We know that sentence for a notifiable crime, the whole batch has to the previous Government had a great deal of time to be held; otherwise, you have to destroy that DNA. come up with it, but there is no evidence to show that it Going back to your point that it is the personal information, has at all inhibited the situation in Scotland and that those bodies are going to have to hold on to those. police and prosecutors have not been able to prosecute serious crime, including sexual and violent crime. We Dr Metcalfe: I am not technically equipped to second- think that the Scottish model is the correct model to guess why the Forensic Science Service organises itself adopt. We have some concerns about particular details—the in the way that it does. The point is that any piece of ways in which the model has changed from the Scottish genetic information is ultimately referable back to an model—but we think in general that the Scottish model identifiable individual. If they know who the DNA is the correct approach. We do not see any evidence belongs to, that is a match. If they know that the person from north of the border to suggest that it has been a it belongs to has not been charged or convicted of a problem in their ability to prosecute people. criminal offence, they should not be holding on to that material. Mark Stobbs: We agree with that. Tim Moloney: So do we. Q179 Clive Efford: But they have to, otherwise they Q176 Clive Efford: What is it that people are concerned will get rid of profiles that may be necessary for future about when their DNA is stored in a national database? investigations. The point is that they can destroy the Is it the fact that they are on a list that is searchable, or evidence that would identify that piece of personal is it that their personal data are held by a national body? information to that individual, but it will still have to be Dr Metcalfe: It is not merely your personal data; it is held. I am concerned about the principle: is it the your DNA, which is arguably the most intimate genetic personal information or is it the fact of being on a information about you that anyone can have. Of course, searchable list? That is the question. what is stored on the police computer is the DNA Dr Metcalfe: It is both. It is the stigmatisation of profile rather than the sample, but there was a practice being on a list that is a police database, built around the of retaining the sample as well, because as investigative prevention and detection of crime. Some people are on techniques improved over time, they would need to go it and some are not. The people who are on it should be 61 Public Bill Committee22 MARCH 2011 Protection of Freedoms Bill 62 people who have been convicted of criminal offences. If “We are further satisfied that the decision to retain the biometric you commit and have been convicted of a criminal information of those charged, but not convicted of a sexual or offence in this country, it is a reasonable restriction on serious offence for three years represents a fair and proportionate your private life that the police from this time onwards approach.” have your DNA profile on file. Isabella Sankey: We have always said that the Scottish model, which allows for an additional three-year retention once someone is charged, is a proportionate way of Q180 Clive Efford: Do you think that the Bill should dealing with the difficult issue of the lack of convictions, go further, in that sense? No innocent people should particularly in rape cases. The bit that I am less keen on have their DNA retained at all. in the Bill is that that can kick in at the point of arrest, Dr Metcalfe: I think the Scottish model introduces a where the threshold is so low, and where you are not sensible compromise in the case of sexual and violent talking about exceptional cases. Being charged and then offences. I think that is a reasonable restriction on the case not going ahead is pretty unusual and exceptional. private life to the extent that there is a concern that That is where you should make the exception, not at the people who have been arrested may escape detection in point of arrest. However, I understand that, particularly future cases. with the national security exception, there is no finite limit on how long DNA can be retained, and we think Q181 Clive Efford: Should everybody who has been that that is problematic, particularly given that it is arrested have their DNA taken and a speculative search almost impossible to challenge retention by a judicial carried out? review or any other means. Dr Metcalfe: We would prefer that that was not done. We would prefer that that to be done only where the Q186 Mark Tami (Alyn and Deeside) (Lab): You police believe it was necessary. However, the power to seem to suggest that the DNA of people who have been do that exists under current legislation. arrested or charged with minor offences should not be cross-checked. From experience, a number of people—not Q182 Clive Efford: You would say no to that? hordes of them, I know—were arrested for minor offences and then subsequently, through DNA, it was found out Dr Metcalfe: We would prefer the police to be more that they were perhaps involved in a murder, rape or proportionate in how they access that. serious offence many years before. You would effectively exclude those. Q183 Clive Efford: Would you say no to that? Isabella Sankey: If I could clarify, I was not referring Isabella Sankey: Yes, because the usefulness of DNA to minor offences but offences where DNA was relevant. comes from what it is useful for. If you are investigating The offence might be a minor assault, but that is an area a crime where DNA is relevant, by all means, the police where DNA is relevant because there potentially is should be able to take it. The idea that it can be taken DNA evidence. Our argument is that where DNA is not for, say, an offence of fraud, where it will have absolutely relevant to the offence for which someone is arrested, it no bearing on any type of evidence and investigation, is not proportionate to take their DNA. seems perverse. Dr Metcalfe: That was the point that I was trying to make earlier, and I am sorry if that was misunderstood. Q184 Nicola Blackwood (Oxford West and Abingdon) The argument is not that the police should never take (Con): We heard evidence this morning saying that DNA in minor offences. If it is a minor assault, you will about 20% of DNA profiles currently held are those of want to know whether that person has been suspected people who have never been convicted. Generally speaking, of a more serious violent offence. under the law of this country, those people would be considered innocent. Do you think that it is more Q187 Mark Tami: But they could be arrested for proportionate and more targeted not to hold the DNA quite a minor offence, such as shoplifting, but through of those individuals indefinitely on a database, as is the DNA be subsequently found to be connected to a more case for the Scottish model proposed? serious one. Isabella Sankey: Absolutely. Our fear is that although Dr Metcalfe: Yes, but my point is that the police the Bill goes much further than the previous Government should not do that unless they have reasonable grounds were prepared to, and we think it is much more likely to for believing that taking the DNA will help them catch comply with the S. and Marper judgment, there are a person. If they are looking for a violent offender who significant loopholes that would effectively allow for is unidentified and they pick up a person for a minor indefinite retention via the back door—the national violent offence, I think that that is reasonable grounds. security exception and the idea that if someone is If they pick up a person for passing a bad cheque, I am arrested or charged with a serious violent or sexual not quite sure that I would go that far. As the Bill offence, their DNA may be retained for three years at stands, you would have the power to take the DNA and first, renewable for two years. My reading of the Bill is run a cross-check in both cases. that there is no finite limit on the retention. Isabella Sankey: I would also like to clarify that Dr Metcalfe: The explanatory notes to the Bill appear although we do not believe that it is proportionate to to suggest that there is a finite limit, but as I read the take DNA on arrest for all recordable offences, which legislation, I do not see how that will apply. include things such as drunkenness in a public place and begging, for example, our real concern is about Q185 Nicola Blackwood: Would you be happy if there retention and always has been. The current retention was a finite limit? Liberty’s submission says: policy means that you have over a third of the black 63 Public Bill CommitteeHOUSE OF COMMONS Protection of Freedoms Bill 64 population on the DNA database, and almost two Q190 Vernon Coaker: What sort of emergency would thirds of young black men on that database. Here, you define? again, is the rub between privacy and racial discrimination. Dr Metcalfe: I simply think that this is a category of measure that is inappropriate for emergency legislation. It also suffers from the defect that you have mentioned, The Chair: Apologies to all Members who have indicated which is: how does Parliament debate it on the basis of that they would like to continue exploring the subject, current cases? but we really have to move on, I am afraid, to counter- terrorism pre-charge detention. Isabella Sankey: We are, as you have guessed, Mr Coaker, pleased to see the limit come down to 14 days. When you compare it with the length of time a suspect can be Q188 Vernon Coaker: May I ask each of the witnesses—I held before being charged for offences that also are guess each and every one will be in favour of the complex and involve a lot of investigation, such as 14 days, and some may even be favour of less than organised crime, 14 days is already more than enough in that—to comment on the Government’s proposals to our view. As Dr Metcalfe says, based on recent cases have emergency legislation in place to extend the 14 days, where people were held for extended periods of time, we should that be necessary? What sort of process do you do not see that more than 14 days will be required. think would be necessary to make that work? One of We briefed parliamentarians, during the attempted the things that came up this morning from the police legislation on 42 days, about the Civil Contingencies was that you get to 11 or 12 days and think, “Oh God, Act 2004, a particularly chilling piece of legislation, in we might need more than 14.” How do you do that our view. We took legal advice on that from David without prejudicing the fair trial for the individual Pannick QC and he agreed that it would be capable of concerned, given the seriousness with which, presumably, being used, in a genuine emergency, to extend the pre-charge Parliament would have to take the application for an detention limit to an extended period of time. The extension because of an individual or case? What sort reason why that idea was not favoured by the then of process would you like to see happening if there was Government was that it would have to be a genuine an emergency, or do you not think that this emergency emergency and could not be something that could be legislation option should be available? flicked on and off more easily. Dr Metcalfe: The House of Lords in 2008 did an We believe that there is already legislation on the excellent report on the use of fast-track legislation, statute book to deal with a genuine emergency—a 9/11-style which was its term for emergency legislation. emergency, God forbid. We do not think that any additional legislation would be required. We completely agree about the difficulties that you mentioned in Parliament Q189 Vernon Coaker: Do you accept that there should passing anything like this in a hurry, particularly given be a fast-track process? Do you accept that there may be that parliamentarians would not be able to discuss circumstances where more than 14 days is necessary? particular cases, and one suspects that the Government Dr Metcalfe: Do I think that there should be provision would only try to push something like this through for emergency legislation in general? Yes, absolutely. because of particular cases. We think that that would be Parliament has to be able to legislate in an emergency. problematic. Of course, there may be reasons for emergency Should this particular device be used? Does it qualify as legislation in all sorts of contexts, but we do not think an emergency, and would it be an appropriate response that this is one in which emergency legislation should or to an emergency? I have great difficulty with that. First would be required. of all, I do not know how we identify the kind of Mark Stobbs: We agree entirely. What is an emergency emergency in which the appropriate response is extending and why is it specifically in the Bill? There may be the current period of pre-charge detention from 14 days individual cases in which one might want to go beyond to 28 days. In the kinds of emergencies that we have 14 days, but we say that there ought to be proper looked at, and if you go back over the history of judicial scrutiny of that. emergency legislation—fire, flood, famine, bombs dropping Tim Moloney: This is perhaps where we differ. We on London and all the rest; look at the emergency also welcome the reduction from 28 days to 14 days. legislation that was put in place in world war two—it Many of us in this area are very conscious of how was not about extending the period of pre-charge detention difficult it is for suspects detained in police custody for in terrorism cases. If you had an event that qualifies as a up to 28 days. It is worse than being in prison; it is genuine terrorist emergency, and the police came to you solitary confinement. Suspects find it very difficult, so and said, “We are concerned that there is a nuclear we welcome that reduction, but we are conscious that bomb somewhere in central London,”clearly the response there may be occasions on which, on taking advice from would not be just to lift the current period of pre-charge the appropriate authorities, it is thought necessary to detention from 14 to 28 days. I hope that they would increase that period of detention. We cannot envisage rather do more than that. every possible situation, so we are conscious that it It seems to me strange from a criminal justice perspective would be beneficial for the Government, on taking that the period was always explained as being about advice, to be able to enact emergency legislation of this evidence gathering, but as we have seen from looking at type. the detail of a number of these cases during the terrorism debates, in fact it was really about the role of the Crown Prosecution Service and its ability to charge using the Q191 Tom Brake (Carshalton and Wallington) (LD): threshold test. I do not really know, if there is an This morning we had interesting contrasting evidence. emergency, what the draft proposals would be an answer Lord Macdonald said that he believed that the police to, and how they would help resolve it. would know on day one, virtually, whether there was a 65 Public Bill Committee22 MARCH 2011 Protection of Freedoms Bill 66 requirement to take it beyond 14 days, whereas Steve important safeguard. We agree with the principle that Kavanagh from the Met thought that by day seven it there should be a blanket search power without reasonable might have become clear that they needed to push it suspicion of this kind in emergencies. However, we do slightly beyond 14 days. Do you have a view, from your not think that it would be proportionate for such a experience, of which of those scenarios is most likely? search power to be authorised by a senior police officer, Clearly, if it is knowing on day one, it may be that the even if they have the necessity and proportionality civil contingencies type of legislation is required to kick checks. in at that point. Isabella Sankey: My understanding is that, of the Q193 Rehman Chishti: Mr Moloney, with regard to very few cases over the past few years in which the where we started from, we have moved from having no police have gone beyond 14 days, they have not actually grounds to having reasonable suspicion, which is the needed to. That has been the advice of lawyers involved same as for a criminal charge. We need to have that, so in the cases, who have said that, based on police interviews, by putting it on the same level, we have come a long they could have charged the individuals or released way. them much earlier. Based on that empirical evidence, we Tim Moloney: The Criminal Bar Association would frankly do not see the need to go beyond 14 days, probably agree that this is a very positive move forward particularly when you bear in mind all the other innovations in terms of the regulation of stop-and-search powers that we have had over the past few years, which, of course, and a move to be much closer to compliance with the include threshold charging, the proliferation of lower European convention on human rights. order terrorism offences and many other innovations to do with encryption under RIPA and so on. It is probably Q194 Rehman Chishti: Also, moving from expediency not the best answer to your question, but we frankly do to necessity, which is what this Bill does, is the right way not see the reason to go beyond 14. forward. Tim Moloney: Indeed. Mark Stobbs: We agree. It is important to remember that these arrests will not take place out of the blue; Mark Stobbs: I think the Law Society would agree there will have been a lot of work done before the arrest with that, too. Broadly, this is a proportionate response, takes place and the investigation does not finish on day and we are happy with it. 14. We think that the police ought to be able to put Isabella Sankey: We took the case of Gillan and some charges at that stage. Quinton to the European Court, and we were enormously pleased with the result of that case. Enormous credit to Tim Moloney: To try to answer your question, I think the current Government for implementing that judgment neither day one nor day seven could be definite. It might by taking swift action to, first of all, suspend a power be that things come to light during the course of the that has been so counter-productive and has alienated first six days that require the investigation of other so many in the Asian community. persons who may be connected to the investigation, which might necessitate going beyond the 14-day stage. I agree with Dr Metcalfe that the Bill could go It might arise at the 10-day stage. It would be very further in a number of respects. We are particularly difficult to put a time on it. concerned about there not being a limit on the number of consecutive authorisations that can be made, and we are also concerned that there is not a firmer limit on the The Chair: Apologies to Members again, but I am geographical extent of authorisations. But there are a going to move on to our next subject, which is counter- number of very welcome reforms in here, and we are terrorism stop-and-search. delighted that progress has been made. Q195 Vernon Coaker: Could I ask each of you what Q192 Rehman Chishti: We know that there has been you think about the fact that, although it is all very well real concern about stop-and-search for the past number to celebrate what is in the Bill, it is already law through of years. In 2009, 100,000 people were stopped and the remedial order that came into effect on 18 March? searched, yet not a single one of them was arrested for Given the importance that you have attached to these terrorist-related incidents. There have also been issues changes, what do you think about the fact that they with regard to certain categories of people, such as have been brought in without any reference to Parliament, minorities and photographers, being arrested using these without any discussion in Parliament and without any powers. Looking at the Bill as it is, do you agree that it is opportunity to debate it? The clauses that you have the right, balanced and proportionate way forward? highlighted and said you are pleased about have already Dr Metcalfe: No. I am sorry to say that it does not go come into law. What do you think about that? far enough. I have to recognise that a great deal of good Dr Metcalfe: It is appropriate for the police, because work has been done. It is a much better provision than by suspending the operation of section 44 wholesale section 44 of the Terrorism Act 2000 was. However, it you take away what in principle could be a valuable does not go far enough, and it is likely to prove to be power in specific situations. Our criticism of the use of incompatible. The main reason for that is that the only stop-and-search without reasonable suspicion was not way to challenge it as it currently stands is by way of that it could never be justified. If, for example, police judicial review. There are insufficient safeguards against receive a threat to St Paul’s cathedral and they want to an authorisation and, despite the requirement that it be establish a cordon around the City of London and use necessary and proportionate, the only way to challenge stop-and-searches, they might want to search everyone’s it is ex post facto. The better way forward would be to bag or everyone’s vehicle as they enter the City of seek prior authorisation from a Crown court judge London. It would be reasonable to use section 44 for a to have the notification put in place. It goes back to the very limited time—say, a 24-hour period—drawn right point about prior judicial authorisation being a vitally around the City of London to effect that. 67 Public Bill CommitteeHOUSE OF COMMONS Protection of Freedoms Bill 68

Q196 Vernon Coaker: With respect, I was asking Mark Stobbs: We welcome the approach taken in the about the fact that Parliament has not debated that. Bill, which seems to us a proportionate one that will be Dr Metcalfe: The point is that back in 2000 Parliament a substantial help to employers and many others. We do made legislation for a blanket power, which was too not particularly see that people will become more vulnerable broadly drawn. It is reasonable for the Government not or more at risk as a result of this. One of the things we to hamper the police operations for a limited period, particularly welcome is the recognition that regulation but we do not think that this is proportionate enough. can happen in a number of ways; that solicitors generally We think it is a great improvement on section 44. We are very highly regulated; and that the sorts of things think it needs to go further, but we think it is reasonable that the original Bill was seeking to prevent are largely that the police should still have the power in exceptional covered by the existing regulation. We are glad that the cases. I would worry if the Home Secretary had suspended rules do not apply to solicitors in respect of legal advice the operation of section 44. to children. We are slightly surprised that they do cover them in respect of other vulnerable people, and there seems to be a very strange anomaly there, which we Q197 Vernon Coaker: But the Home Secretary did think ought to be looked at. suspend the operation of section 44 in July last year, Isabella Sankey: Liberty takes very seriously the which is why the guidance was changed, and it was protection of children and vulnerable adults. Indeed, changed again, and why we have had the remedial order under the Human Rights Act the Government have in front of us. The point that I am making, however—I positive obligations for the first time in domestic law to wonder what everybody else thinks—is that Parliament protect life and to protect those who are vulnerable. We has not had the opportunity to debate the clauses in the think that the Bill strikes a good balance on this issue. Bill; the remedial order that was passed and came into We absolutely welcomed the creation of an independent force on 18 March puts into effect these clauses before body to perform the very sensitive function of ensuring we have debated them. that those who were given employment with vulnerable Isabella Sankey: I take your point, Mr Coaker, about adults and children were appropriate. One of our major the importance of parliamentary scrutiny. In fact, we concerns previously was that under the enhanced Criminal are like a broken record, arguing so often about how Records Bureau disclosure framework we found—this important parliamentary scrutiny is; that measures that is something that lots of people contacted our organisation are meant to be in primary legislation should not be in about—that employers were always erring on the side of secondary legislation; and that your role is so vital in caution if even the smallest piece of soft information ensuring that measures are proportionate and human was passed their way, regardless of whether the individual rights compliant. That said, when any Home Secretary could refute the circumstances, or explain information decides to use Human Rights Act powers, Liberty will that on the face of it might have made them seem not take issue with that. We think that the Act achieves inappropriate. So we thought—I think this was very a fine balance between parliamentary sovereignty, which much the implication of Sir Michael Bichard’s report is absolutely crucial to our style of Government and into the Soham murders—that having an independent our history and traditions, and ensuring that people’s body would be a very good way of squaring a difficult rights are protected when you have a judgment, which circle, so that past criminal convictions could be taken we had in this particular case, from the European Court into account along with sensitive information that was of Human Rights saying that the power was unlawful. not conviction-related, but was relevant. Mark Stobbs: It seems to me that Parliament gave the One thing that we were concerned about when the Home Secretary the power to do this. ISA was created was that the enhanced Criminal Records Bureau check was going to continue alongside it. We Q198 Vernon Coaker: Why is it in the Bill, then? did not really understand the point of that. We were also concerned that under the Safeguarding Vulnerable Dr Metcalfe: The opportunity for Parliament to go Groups Act 2006, many more people would need vetting further, as we would encourage it to do. We think it is who had not previously been vetted. Arguably, they right for the Home Secretary to take the remedial step, would be categories that it was not necessary to vet, because it is right for the police to have a proportionately whether they were receptionists, cleaners or other categories drawn section 44-type power. We do not think that the of people—that extra controlled activity category. remedial order power is proportionate enough, and we think Parliament should go further. I do not quibble with the Home Secretary for taking that step in the Q200 Diana Johnson: On that point, do you think interim. I do not think that it pre-empts your obligation that there was a lot of misunderstanding about that? as parliamentarians to deliberate on what the proper One issue that was raised was about well-known authors rules should be. going into schools and reading to classes. As I understand it, they would never have been covered by the provisions, but there was a lot of misinformation. Do you think The Chair: We are going to move on now to vetting that that was part of the problem? and barring. Isabella Sankey: There may well have been misinformation, but one of the other concerns we had Q199 Diana Johnson (Kingston upon Hull North) was that the provisions were quite vague in the way that (Lab): Obviously, we are concerned to keep vulnerable they were defined in legislation. There might have been groups safe. I wanted to ask the panel whether they had some quite understandable misunderstandings, which any concerns about some of the deleted activities in the then, of course, can lead to misinformation. Anything regulated category, and what they thought about the that tightens up and gives a bit more certainty is welcome. concept of the controlled activities being removed. We would not for a moment want to see a regime 69 Public Bill Committee22 MARCH 2011 Protection of Freedoms Bill 70 whereby people who were spending extended periods of The Chair: That is excellent. The first question is on time in contact with children and with vulnerable adults vetting and barring. were not being properly vetted beforehand. We hope that as the Bill is given further scrutiny we can all be absolutely sure that that will not be the case. There Q203 Steve Baker: Do you think overall that the needs to be detailed scrutiny of those provisions, but proposals provide enough protection for vulnerable people? more concerning for us is that the Bill seems to be Sir Roger Singleton: I think that they do. The Bill carrying on the two-track approach of enhanced CRB adopts a different approach to its predecessor, but in alongside the ISA. It does not seem to make much sense general, our view is that the safeguarding interests of to us, as to why both are required. children and young people are well considered and they are protected in the Bill. There are lots of aspects that Q201 Diana Johnson: Can I ask one other question we welcome, such as the abolition of the registration about barring? It is about the amendments to people scheme, the auto-bar provisions, the abolition of controlled who will be on the list for barring. Only people who activity, and the removal of prisoners from the vulnerable have worked in regulated activity, or are likely to work adults category. in regulated activity, would be on the list. That concerns Our residual concerns—we are still in the process of me, because people make all sorts of decisions in their exploring our understanding of those with officials lives about what kind of careers they have, and they first, and later with Ministers—are whether the interaction often switch midlife. Does the panel think that we might between the new regulated activity, or work that will be setting ourselves up with a problem by having that attract a mandatory CRB disclosure, and other work amendment? with children and young people may contain one or two Isabella Sankey: It is important that anyone who loopholes. In putting those points to the Committee, starts working with vulnerable groups is properly vetted. our intention is not at all to increase by a single role or My reading of the Bill is that that is not prevented, but function the number of people who have to be in that the onus is now going to be on the employer to regulated activity and, therefore, are the subject of ensure that they are vetting people they decide to employ. mandatory disclosure. We seek, however, to ensure that Our experience of that framework is that employers are the information flows on people who are known to have very keen not only to vet, but to get enhanced CRB and engaged in inappropriate conduct towards children and get as much information as possible. We do not see the vulnerable adults are made known to prospective employers, onus being on the employer as problematic per se. Our so that they can consider whether, in the light of that, concern would be to make sure that people are properly they should employ or engage such people. vetted when they are about to start in relevant employment. In short, yes, we will be content from a safeguarding Q202 The Chair: Does anybody else wish to make a perspective, which is what we bring to the party, as it contribution? were, to implement the scheme. We have indicated one or two areas where we think that safeguarding could be Mark Stobbs: We would agree. The original legislation improved without any violence to the fundamental was very, very vague and lots of people would be doing principles that the Government seek to achieve. things from an abundance of caution. This improves matters substantially. Tim Moloney: We agree. Q204 Steve Baker: May I ask you about the categories that are being removed from the list of regulated activities? The Chair: There is not enough time for us to ask Do you have any concerns there, or are you content? another question and get an answer, so that brings us to Sir Roger Singleton: I think that our concerns are not the end of the time allotted for the Committee to ask about the categories but about the concept of supervision. questions of these witnesses. On behalf of the Committee, What will “supervision” actually mean? I do not know I thank you for your contribution. whether the Government’s intention is to seek to define 5.30 pm it, which I think will be challenging, or to leave it to local interpretation, which could lead to widespread The Chair: We will now hear evidence from the interpretation. That is the point that we want to look at Independent Safeguarding Authority and from Mrs Sunita with some care when ideas develop, rather than saying, Mason. Welcome to the sitting. Wouldyou briefly introduce “Well, we think, for example, that cleaners in old people’s yourselves to the Committee? homes should be included in regulated activity”. That is Mrs Mason: My name is Sunita Mason, and I am not at all an approach that we are seeking to adopt. the independent adviser for criminality information management. I was appointed in September 2009, and I prepared a report called “A Common Sense Approach”. Q205 Steve Baker: Since you mentioned supervision, Some of my recommendations have found their way would you agree that if a vetting process is too simplistic into the Bill, or the draft legislation. it tends to undermine the personal responsibility of Sir Roger Singleton: I am Roger Singleton, chair of supervisors and employers for knowing who their staff the Independent Safeguarding Authority. Immediately are, what they are doing and so on? prior to that, I advised successive Secretaries of State Sir Roger Singleton: One of the challenges that we all on who should be statutorily barred from working with face is that vetting and barring can be vested with too children under the then legislation. much comfort and authority. The intention is to underline Anne Hunter: I am Anne Hunter, director of operations the responsibility of the employer or the organiser of at the Independent Safeguarding Authority. Prior to volunteers, and that is right. The approach should be that, I worked for the Home Office and the Department that the right relevant information is provided to employers, for Education, in child protection. so that they can make those sorts of decisions. 71 Public Bill CommitteeHOUSE OF COMMONS Protection of Freedoms Bill 72

When I have stood up and spoken about both the understood that there had been quite a bit of discussion former scheme and these proposals, I have said, “Look, about it and that the matter was well understood. If you if you go out of this room and forget everything I have are specifically asking whether we feel that it is appropriate said, remember this one thing—that your responsibility that the age range for the definition of children should as an employer is not diminished one jot by these be up to 18, our experience of barring would be to say proposals. These are supplementary. You have every that it should, because there are young women who are continuing responsibility to engage in proper selection, vulnerable in those circumstances. proper supervision, proper induction and proper training.” However, I agree that given where we are in terms of Q210 Diana Johnson: May I ask about information public communication at the moment, there is a continuing that is passed to the ISA at the moment, but, in the danger, which I hope we can address in the coming future, would not be covered by a regulated activity? I months. want to get some idea about what percentage of information would fall into that category and, also, what would Q206 Steve Baker: With that in mind, my final question happen to that information if the Bill becomes law. for now is about volunteers. There is general cross-party Anne Hunter: That is one of our concerns. We get consensus that our society needs more volunteering. Do referrals for people who are currently in regulated activity, you agree that volunteers can be put off by vetting and, and we will not in the future. When that information if so, what sort of measures would you suggest for leads to a bar, they are barred from posts that they will voluntary groups? then be able to work in once the definition changes, even though that was the post in which they committed Sir Roger Singleton: I have tried to look at the evidence the behaviour that led to them being barred. Our concern on how volunteers are put off and frankly it does not is that if we receive information about someone who is swim in a single direction. I understand the irritation of working with children and vulnerable adults but not in people who are offering their services, time and skills regulated activity, and that behaviour relates to harm for free at being put through what may very well be for children and vulnerable adults, if we cannot identify perceived as a bureaucratic process. that the person has previously worked in regulated I would like to add a point to your question if I may, activity, we will not be able to bar them. In theory, if Mr Baker, without seeking to avoid it. When I did a they are not working in regulated activity, it is not an piece of work that looked at the earlier scheme, the issue, but if they subsequently apply to work in regulated National Confederation of Parent Teacher Associations activity, or happen to be working in regulated activity canvassed the views of parents. Three out of four that we are not aware of, we could technically, at that parents said that if they personally could not be responsible point, consider barring them because they are now for deciding which adults looked after their children, applying, but the age of that information would be the adults should be subject to some form of check, cold. basically to see that they were not unsuitable to work with children. I have to say that for all my massive Q211 Diana Johnson: Are you saying that you would support of volunteers, and I have worked with thousands store that information? You would retain it and it may of them during my years with Barnardo’s, consideration or may not be used in the future. of relatives and parents should sit alongside the debate Anne Hunter: Yes. Obviously, we would have provisions about whether checking is off-putting to volunteers. on how long we would retain the information, in line with all the information that we keep. If we have had a The Chair: Remaining on the subject of vetting and referral and the behaviour is relevant—not if it is barring, I call Diana Johnson to ask a question. irrelevant—in that a child or a vulnerable adult has been harmed, we would retain that information in case Q207 Diana Johnson: May I ask about the position of that person applied to work in regulated activity at 16 and 17-year-olds? As I read the Bill, they would not some point in the future. be within the vetting and barring scheme. Is that correct? Q212 Diana Johnson: Just to be clear, if there is a bar Anne Hunter: As we understand it, yes. on somebody working with children because they were a teacher before and information was available that Q208 Diana Johnson: So 16 and 17-year-olds are not resulted in a bar, and they then chose to be a volunteer treated as children. There is a gap and then, if they were under supervision in a classroom with a teacher, helping vulnerable adults, they would be in that category. Is that with reading, that information about the bar would not correct? There is a gap? be available because it is a non-regulated activity. Is that Sir Roger Singleton: I think that would be right, yes. correct? Anne Hunter: The information about the bar would Anne Hunter: As we understand it, the legislation not be available to the employer. does not cover 16 and 17-year-olds unless they are vulnerable in the same way as a vulnerable adult. Q213 Diana Johnson: To the employer? Anne Hunter: Yes. They might be advised of the Q209 Diana Johnson: Okay. That is something that information that led to the bar by the disclosure process, we need to look at. I am assuming that you would have but they would not be aware of the bar. safeguarding issues about some 16 and 17-year-olds. Sir Roger Singleton: Yes, that would be true. The Q214 Diana Johnson: Could I ask one other question, evidence is that girls, particularly in years 11 and 12, are which relates to the Education Bill that is currently the subject of inappropriate conduct mainly, but not going through Parliament? That refers to a list of teachers exclusively, by men. We have not raised that because we who are barred through the General Teaching Council. 73 Public Bill Committee22 MARCH 2011 Protection of Freedoms Bill 74

That information is held by the Department of Education. been near the police; therefore, if, for example, a male As I understand it, that list is available to the general teacher barred from working in schools wanted to volunteer public and to schools. If a teacher is barred on that list, as a Sunday school teacher and the parish priest decided that information is available in the public domain, but to apply for a CRB disclosure, if the grounds that led to you are saying that in the particular instance that we the barring had not involved the police, the disclosure just discussed, the barring information that you hold would come back, in the jargon, clear. Although we would not be available? understand why we are there on that, we feel that it Anne Hunter: As far as I am aware—I am not familiar gives false comfort to the parish priest in that circumstance, with that legislation—the information that would be because a reasonable belief would be that there are no available to parents and to other people who want to known grounds for concern. That is a small adjustment check would be on whether the teacher is registered. If that we think would improve safeguarding and, I have the teacher is barred, they would not be registered. That to say, would improve public confidence in the scheme, is how it works at the moment. A parent can check too. whether a teacher is registered, and if they are barred, Mrs Mason: I hear what Sir Roger Singleton has to they will not be registered, but the parent would not be say on those matters. I think, however, that if there are told whether they are barred. I do not understand how serious concerns, employers need to be educated to the legislation will work once the General Teaching refer matters to the police. Quite frankly, it is not only Council ceases to exist. the ISA that might want to share information. I sit as a deputy district judge, and I have to see safeguarding information in respect of children. If the police have Q215 Diana Johnson: That is very helpful. My information when those safeguarding checks are carried understanding, from the answer that I received to a out, that information goes to the courts and will come parliamentary question earlier this week, is that it is to a judge’s attention. If an employer only makes a a barred list. It is not if you are not registered; it is if referral to the ISA and does not make any referral to you are actually barred. I will pursue that somewhere the police to investigate, that information is lost to the else. criminal justice system. If it goes through the police, the police obviously do a relevance test in deciding whether Q216 The Chair: Mrs Mason, do you want to come that information should be released. So there is a in? proportionate measure, but it is also fairer, correct and Mrs Mason: Yes. First I want to say that, in terms of safer because the whole criminal justice system can the review that I have prepared, my fundamental underlying share that information if it is relevant. We are talking belief is that public protection comes first and foremost, here about proportionality and safeguarding. but we can be more proportionate in how we disclose Q218 Mr Tom Watson (West Bromwich East) (Lab): and give information to employers to allow them to Sir Roger, am I right in thinking that the Bill’s proposals make the best decisions. In circumstances such as the represent major changes to the way that your organisation example you have just given, there need to be good and operates? safe employment and recruitment practices, as I envisaged when I wrote my report. If, for example, a teacher had Sir Roger Singleton: No, Sir, I do not think you are. It done something so serious that it led them to be barred, is not in the Bill, but it was in the review of the vetting the police should have been involved. If there was a and barring scheme that the Criminal Records Bureau conviction, it would obviously be disclosed in an enhanced and the Independent Safeguarding Authority should criminal record check, if they were engaged in non-regulated merge. In a sense, there are obviously structural and activity—as a volunteer, for example. If there had been consequential implications for staff, depending on how no conviction but there was local intelligence information, that is managed. In relation to the primary function a chief officer would, again, make a decision about that the ISA has, which is to maintain the lists and to whether it was relevant to release that information. If consider whom it is appropriate to add and, indeed, good and safe employment practices are carried out take off the list, no, I do not think our function has and proper guidance is given to employers, they can get changed materially at all. the right information to look at these issues. Q219 Mr Watson: In most of the answers you have given to colleagues, you have said that you have particular Q217 Diana Johnson: If the activity is not a regulated concerns. activity, my understanding is that employers would not Sir Roger Singleton: I beg your pardon? have to apply for the CRB checks, so they would not get any of that information. Q220 Mr Watson: You have said that you have particular concerns that have not been clarified by officials or Sir Roger Singleton: That is my understanding. The Ministers. Or am I misunderstanding what you said? employer of a person who is prospectively working with Sir Roger Singleton: I think you are overstating what children and young people in non-regulated activity has I said. The overwhelming majority of our views and the option to apply for an enhanced disclosure. The feelings are of comfort that this is going to do the job. enhanced disclosure will not reveal whether the person The ISA board’s concern relates to three points. I have is barred, but it will reveal information about any just given an illustration of one. It is a different approach criminality—cautions, convictions or police soft intelligence. from the approach that the Safeguarding Vulnerable The concern that we have—this is one of our three Groups Act 2006 took. little loophole points—is that we estimate that one in five cases of people being barred have not been near the Q221 Steve Baker: Sir Roger, just to pick up something police. The proportion is greater in relation to vulnerable you mentioned a few minutes ago, you talked about soft adults than it is in relation to children. They have not intelligence. That sounds like a material factor in deciding 75 Public Bill CommitteeHOUSE OF COMMONS Protection of Freedoms Bill 76

[Steve Baker] totally disproportionate, because she was not found guilty; there was no conviction, and on the local intelligence the course of what people are allowed to do. I am afraid held it was clear that it was not even her. that I do not know what it is. Could you just walk me Intelligence can form a vast array of anything from through what soft intelligence is and how it comes to be one to 100 in its relevance. In my discussions with recorded? ACPO, it has said that it is really about who disclosed it Sir Roger Singleton: Yes. ACPO would slap my wrists and when; the nature of that source; the relevance of for calling it soft intelligence. It is basically police that information; and how many other incidences there information. It might be broadly one of two types in are. It is a decision that needs to be taken by a chief this area—these are the only disclosures that I see. One, officer under a quality assurance framework test. It is it might amplify on the statement of a caution or very complicated, but when it is done right it gets the conviction that is on the disclosure. That is one type—it right results. may give the circumstances. The second type, which is more contentious—Mrs Mason may wish to comment Q224 Steve Baker: May I ask a tiny follow-up question? on this because it is as much her area as ours—is where, I am not a lawyer, but I am astonished that in the first for example, the police may have investigated allegations case that you mentioned the man was not prosecuted. I of an inappropriate relationship between a care worker think you mentioned assaults on children aged five to and a young person in the care home. It gets to the point nine. It seems to me astonishing. If he is guilty of such a where the police decide—perhaps because the young thing, I want that person put in prison. Equally, if a person refuses to co-operate further—that the prospect person is not guilty and he has had five allegations, do of a conviction is not there and therefore they do not we just get to a point where five allegations amount to a proceed to court. Under the police intelligence system, conviction? To me, this seems to be the nub of such they may record the fact of that investigation. measures. Would you agree that it is the heart of what we are doing? Q222 Steve Baker: Thank you. Sorry, just to be clear, Mrs Mason: It is very worrying, which is why the the fact of that investigation means that it is recorded police keep this information. As to the reasons why and that there was an allegation, not that there was a wherefore—I am a family lawyer, not a criminal lawyer conviction or proof of wrongdoing? by practice—there could be many reasons. The child Sir Roger Singleton: If there was a conviction, it might not want to give evidence, or the CPS might not would be on the conviction side. It records the fact of feel that it has enough to charge. There could be a whole the allegation, and that is done in accordance with a host of reasons. That information is still really, really protocol that ACPO issues to all police forces. important because it contains information that is very serious in terms of safeguarding. It is absolutely right in Q223 Steve Baker: I think I see why you call it certain circumstances that that is released. contentious. Sir Roger Singleton: It is contentious for other reasons Q225 Mrs Jenny Chapman (Darlington) (Lab): I suspect as well. I do not want to put you on the spot on that, that Michael Ellis is about to ask this, but surely that Mrs Mason. information should only be passed on if it were proven Mrs Mason: I am happy to amplify. Intelligence is and resulted in a conviction. something that has vexed and taxed me for some time—in fact, since I came into post—because I realise that it Michael Ellis: What if it is true? is collected by the police for their internal use, but it is then disclosed in a manner that is perhaps not always Q226 Mrs Chapman: Well, Sir Roger, can you just fair and proportionate, although there are times when it explain a little bit more about what the ISA actually is absolutely essential that that information is revealed. does? I should declare that I have visited the ISA on For example, there was a real case where a man who several occasions and have discussed this with some of applied for an enhanced check to work as a tennis coach your caseworkers. I have also worked in high-security at a primary school had no convictions, cautions, warnings prisons and read the court reports of many offenders, or reprimands, so in that sense it was clear, but the local and I have observed the fact that in very few of the intelligence held by the police suggested that over a serious convictions is it the first offence or the first period of five years there were instances of his assaulting victims. There is clearly a lot of crime going on, and four individual girls aged between five and nine. The there is information that if it had been passed on and chief officer thought that that was highly relevant to dealt with properly could have prevented crimes. There disclose to the employer, and that information went on is an idea that the ISA collects information, and that it to the enhanced CRB check. It is absolutely right in probably errs too far on the side of caution and bars such circumstances that that sort of information is people when perhaps common sense might dictate that given. it should not. Can you explain the process that you go On the other side of the coin, however, information through and the checks that you perform internally to from local intelligence can be revealed as in the case of a make sure that that does not happen, and the appeals 13-year-old who was arrested on suspicion of assault, that people can lodge with you to ensure that people are but who was not identified as the offender and the CPS not inappropriately barred? said that it would not take any further action against Sir Roger Singleton: May I suggest that Mrs Hunter her. When she turned 16, however, she applied for a answers, because she runs it? CRB check to work on an external work placement as a Anne Hunter: When we receive a referral there are a nursery nurse and that information was released, so it number of tests that we have to check before we take was not a clear check and she was told that she could any action. The first one is whether we have any evidence not do that job. That is a real-life scenario. That is of relevant conduct. There was a lot of information in 77 Public Bill Committee22 MARCH 2011 Protection of Freedoms Bill 78 the press which suggested that we barred people because Q227 Nicola Blackwood: I am a little confused about they were lonely, or because of gossip and innuendo, or the statement that Sir Roger made earlier, that the main for various other reasons. On the contrary, we actually concern of the ISA are those cases in which an individual have to have information that a child has been harmed has been barred for reasons that have not been disclosed or put at risk of harm, or a vulnerable adult has been to the police. Why, if you have a collection of information harmed or put at risk of harm, before we would look at that is so serious that you feel that a person should be the information. This is ignoring the auto-bar process, barred from engaging with children, has that information which is a separate piece of work. If the information not been passed to the police? Mrs Mason commented that comes to us did not demonstrate that, we would that soft intelligence included in CRBs takes in such a not take action against the person because we have to range of intelligence. Are you not permitted to pass on have that harm to a child or vulnerable adult. such important information to the police? Having established that the information that we have Sir Roger Singleton: I think it is probably true to say received suggests that harm took place, and if there is that the majority of cases that involve children have no criminal conviction or caution, or a finding of fact involved the police. There are some that do not, for by a competent body such as the General Medical example, a school might decide, on the face of the Council, we get information to see whether we believe information that it has, that a person has behaved that what we call “relevant conduct” took place. We inappropriately. It challenges the individual, who says, weigh up the evidence very carefully to ensure that we “I’m going to resign.” The school is so relieved that it are satisfied that the behaviour took place. We do not lets the bursar bundle him out of the back door. There have to reach the same standard of proof as a court, but is no referral to the police, and that is the end of the we have to be satisfied on the balance of probability matter, except that the school should refer it to us. If we that the behaviour took place. are in possession of information that a similar thing If we are satisfied that the behaviour took place, we happened three years ago and we took a decision at that look at the information that we hold to establish why we point not to bar, we start to put those two things believe the behaviour took place, and whether this was a together and say, “What is it about this man’s behaviour one-off accident that will not be repeated or the result that leads to this situation?” of premeditated behaviour. We have a risk assessment process that caseworkers are trained to undertake, which Q228 Nicola Blackwood: I understand that, Sir Roger, looks at the behaviour and all the other information and I agree with Mrs Mason that schools should refer that we receive. Some of that information might be such cases to the police in the first instance, and that we about other convictions that the person has, or it might have a duty to encourage them to do so. My question is just be other details that we have about how they have not whether schools should do so; it is this. Once you behaved in their role—their job. It might be information have that information and you have made a decision that the employer has provided to us about previous about firing, why are you not communicating that decision disciplinary hearings. We collect a range of information, to the police, along with the information on which you and if there has been police involvement we will get based it? information from the police. Sir Roger Singleton: I see. I would like Anne to come We put together a picture of the person and make a in, but there are occasions when, if we believe that a decision about whether we believe that person presents serious criminal offence has been committed, we first of a risk of harm to children or vulnerable adults. If we all encourage the school to report it to the police, or, decide that they do, we write to the person, giving them exceptionally, do it ourselves. But we do sometimes deal a copy of all the information that we hold and saying, with information that is less specific and much softer “This is what we hold. These are the reasons why we than that. It might even be that the police have been consider it is appropriate to bar you,” and we give them consulted informally and say, “No, you sort it out the right to make representations in relation to that within the school,” and do not record anything, so there information. When we receive the representations—if is nothing on the record. the person makes any—we reconsider the information that we hold to ensure that our findings of fact are still correct. It might be that the person provides information Q229 Nicola Blackwood: But then what about all the that challenges those findings, and that we decide that soft information to which Mrs Mason refers that is they were not accurate because of the new information commonly included on CRB checks? That is exactly the that impacts on them. We will also reassess whether the kind of information that you are referring to. You findings of fact are accurate, and whether any information choose not to refer it, and you say that the police do not is provided that suggests that the level of risk changes. record it, but Mrs Mason says that they do. I am unclear. If, at the end of all that, we are satisfied that relevant Sir Roger Singleton: I am sorry. Can you help me conduct took place and we believe that there would be a some more with what your question is? risk of harm in the future from that person if they were allowed to work with children or vulnerable adults, we bar them. When a person is barred, they have the right Q230 Nicola Blackwood: You said that the reason to appeal against the decision, and they can appeal on a why you did not refer such information to the police is finding of fact. If we have decided that behaviour took that it is soft information and you do not consider it place and there is no caution or conviction, the person necessarily as evidence of a criminal offence. However, can challenge that on appeal. We can also be challenged in the evidence that we just heard, Mrs Mason said that on a point of law, which could be that the decision that CRB checks commonly include soft information such we made was totally irrational—that based on the as that. Why do you not refer that information and information we had it was not appropriate to bar. remove your concern entirely on that basis? 79 Public Bill CommitteeHOUSE OF COMMONS Protection of Freedoms Bill 80

Sir Roger Singleton: That would be an option open to authority has paid for the checks to be done, which are us. We are not under a statutory duty or obligation to part of the process—when the authority does not get do so. I think that the views of the police would be an the reply from the system that it would expect to get? important thing to gain on that. Without coming away What happens when it goes to the individual and that from the point that you make, a piece of work that the individual just disappears? Department of Health carried out revealed that in Mrs Mason: If an individual wants a job, it is for relation to inappropriate behaviour towards vulnerable them to ensure that that disclosure goes back to the adults in care homes, some 50% of concerns that led to employer, or, if they want a voluntary position, that the dismissal or agreed resignation were not referred to the disclosure goes to the person who needs to see it. It also police. I lay the information before the Committee for it means that if there is information on a person that to consider, but at the moment, it is not our duty to makes them think, “I did not know that the police had police policing activities, if I may put it that way. this on me, but it is quite right, I will not be able to challenge it successfully, I will step away”, that is quite Q231 Nicola Blackwood: Well, it is your duty to right. ensure safeguarding. I would have thought that one way that you could do so is to ensure that the criminal justice system has the information that it needs, but that Q234 John Robertson: But if I pay for it, do you think is my personal view. I will get it? That is the point I am trying to make. If I am paying the money for the disclosure, should I not be The Chair: We move on to disclosure of criminal getting it, if I am the airport authority? records. Mrs Mason: Well, that is a good point. Not all Q232 John Robertson: This follows on from what we authorities, however, pay for checks. have been talking about in relation to clauses 77 and 79. Most of the questions are for Mrs Mason, but all of you should feel free to contribute. Do you envisage any Q235 John Robertson: Do you think that when we are problems arising if individuals are allowed to see what debating this clause, we should be looking for an the disclosure will be before their employer gets it? Are amendment that basically says that every case, no matter you happy with that? how the check has been requested, should always go to the individual, even if it is a group application? Mrs Mason: I think it is much more fair and proportionate. I carried out a wide range of consultations Mrs Mason: I think that is a matter for Government with lots of different types of person, stakeholders, to decide. One of the things that I did was to look at the charities and organisations, and I have to say that most bigger picture and a more proportionate response. On people were very much in favour of the “one certificate” actual operation, it is for Government to decide how approach, because it is much fairer and more proportionate. best to meet those needs. I would say that that was more We talked about the alarming type of local intelligence of an operational process-driven point. that can be disclosed on a certificate. It can go from something very serious to very minor, but a lot of Q236 John Robertson: CanIaskyoutogivemean employers are still under the false apprehension that if a opinion on how the ISA and the CRB interact with check does not clear, one cannot employ someone. I each other? There was something you said, Sir Roger, spoke to a head teacher who said that he still meets that led to me to write down the question, “Do they head teachers today who think that. One of the examples actually talk to each other?” Do you think that they that I gave in my review was of a teacher who had a should be one body? penalty notice for disorder—not a conviction—for excessive standing at a football match. That was revealed in local Mrs Mason: One of things that I said was that it is intelligence. He was very worried about it and thought confusing. I only say it because the people whom I he might lose his job. If he had seen that first, when that consulted found it confusing to have two different systems. certificate was disclosed to him, he would have had an I fundamentally believe that barring decisions should opportunity to put that right. He would have had the be taken independently. However Government decide opportunity to go back and say, “Is it really relevant to merge or call a new body, I think that that is right—I that this is disclosed? Does that make me a risk to have said that in my review. The Government review children that I got a bit excited at a football match and my review on criminal records sit together very once?” Someone can then make a decision on that. He well. One of the questions was, “Should soft intelligence should not have to be at risk of, or fear, losing his job be on the face of a disclosure?” Sorry, I mean local over that. It is about being proportionate and sensible. intelligence, otherwise ACPO will be cross. Let me use the correct terminology. John Robertson: Of course, there is just getting excited and there is getting excited. Q237 John Robertson: Can I ask you to clarify what Jim Shannon (Strangford) (DUP): Excited about Celtic. soft intelligence is? I am comparing clause 79 with clause 77. Clause 79 is about enhanced criminal record Q233 John Robertson: Yes. Having said that, I was certificates. The explanatory notes state that the quite excited at the weekend myself. determination of My information is that many of the checks were “non-conviction, information should be included in an enhanced group checks. When the airports were being done, they criminal records certificate.” were done en masse. The checks therefore did not come Does that mean that it only happens with an enhanced from the individual; they came from the airport authorities. criminal records certificate and that there is no soft What happens in a case like that—where the airport intelligence on the original ordinary request? 81 Public Bill Committee22 MARCH 2011 Protection of Freedoms Bill 82

Mrs Mason: Not on a standard or a basic, no. That Q242 John Robertson: My point on that was that it would only be on an enhanced certificate. If you were was not so much that somebody would complain about working in the sort of role that required you to have an it, but that something would be missed because you enhanced certificate, you would apply for it and that were not talking to each other. Nobody will complain information would come out. One of the questions that about something that is not there. They will complain was in my terms of reference, and which the Government about something that is there, but not about something asked me to look at very carefully, was whether local that is not there. intelligence should be on the face of disclosure. I very Sir Roger Singleton: I hope I can give comfort on much felt that it should, but with a package to make it that. Of course, the CRB does not itself exercise judgment more proportionate to individuals, hence my idea of about what is on the systems it holds. The information one certificate. If, however, the Government had said to is controlled by the police. It is the means whereby the me, “We hear what you’re saying, Mrs Mason, but we information flows from police forces, among other agencies, do not think that this should be on the face of a to the ISA. disclosure”, then I would have been uncomfortable with how the two reviews sat, because I would have thought that there would have been loopholes and gaps for Q243 Rehman Chishti: This is a question to Mrs Mason. individuals to fall into, and that could have eroded On Mr Robertson’s earlier question on the individual public protection. However, I believe that the way that knowing what information is against held on them so the two sit together as drafted covers public protection that they can challenge it, am I right in thinking that it but still looks at proportionality, so I am satisfied with is essential in the interests of justice and fairness for that. that individual to have the information? It is similar to evidence of bad character in a criminal trial, where an individual is given the details beforehand, and sometimes Q238 John Robertson: But nothing there says that all it is not convictions or cautions that amount to bad soft intelligence has to be included. It simply says what character. If people are given the opportunity to challenge is “relevant”. The wording has changed to “reasonably in the interest of justice in the latter case, they should be believes to” be relevant. I am not quite sure what the given the opportunity to challenge information before it difference is or if it is just a case of trying to make the goes anywhere else in the former case, in the interests of clause look different. Who says it is relevant? fairness. Mrs Mason: The chief officer. Mrs Mason: Absolutely. I firmly believe that. Q239 John Robertson: If I am the person getting something written about me, I might not think it is Q244 Michael Ellis: So, you support the provision relevant, so my opinion is completely different. that this extra safeguard will entail within the Bill. That Mrs Mason: Exactly, which is why I also said that will create a safeguard, as it were, of allowing an avenue there needed to be a robust appeals procedure. of appeal. You feel that is important. Mrs Mason: It was actually my recommendation, so Q240 John Robertson: Before the employer sees it. yesIdo. Mrs Mason: Yes, hence my example about the penalty notice for disorder—excessive standing at a football Q245 Michael Ellis: That follows. match. The chief officer might have thought, in his Mrs Mason: Not only do I support it, I am delighted wisdom, that it was relevant to disclose that on a that it is in the Bill. teacher’s CRB check. The individual gets it on his certificate, asks why it has been disclosed and appeals, so the decision is made to remove it. Q246 Michael Ellis: I take that as a definite yes. May I add this point? Correct me if I am wrong, I detected a degree of concern that you have about soft information. Q241 Mrs Chapman: May I come in there? I am Is it accurate to say that what is being termed as soft probably not supposed to. Some of the decisions seem information—the police do not actually like that term to be quite finely balanced and rely on a lot of expertise because they think it is derisory—can be little more and experience. With the merger of the two organisations, than hearsay, sometimes no more than gossip? Is it not will what the ISA bring to the new organisation help to right that people should have a robust safeguard against make those judgments or has that not been decided? malice that may be directed towards them? What this Will it still be separate? does is form a balance between the competing interests, Sir Roger Singleton: The judgments about disclosure both the individual who may be subject to that soft of police intelligence, as Sunita said, rest with the chief information and the general public and the need for constable of the administrative area that acquired the protection. information, so the ISA has no locus or say in what is Mrs Mason: Absolutely. I have met many people disclosed on police intelligence. Part 5 of the Police Act whose lives were effectively ruined by local intelligence 1997 deals with that. that amounted to nothing more than gossip and rumour. To pick up Mr Robertson’s point about the ISA and That cannot be justice at all. the CRB, he will accuse me—“He would say that, wouldn’t he”—but I am not aware of a single complaint about the lack of effective work between the CRB and Q247 Michael Ellis: No. Is it the case that a chief the ISA. It is highly electronic, obviously. The lists must officer of police making a decision is a sufficient safeguard? be updated daily, but I think the case for merger rests Mrs Mason: Generally. However, because there are so much more on clarity for the public and the professionals many different police forces in the country, I have found and on rationalisation of back-office costs. from my discussions with ACPO that there is not always 83 Public Bill CommitteeHOUSE OF COMMONS Protection of Freedoms Bill 84 the same consistency of decision making. That is why regulated activity and what supervision is, and so on? I there are the anomalies like the revelation of a penalty am concerned that there is going to be confusion, notice of disorder. One of my recommendations was particularly in the voluntary sector. that that decision making could be centralised or Mrs Mason: I share your concerns. At the moment regionalised. Then you would get a much more consistent the guidance is confusing, it is not tailored, and most approach. Also, if there were a statutory code of practice, people are not quite sure. Sometimes when they look at which I again recommended, that all chief officers the guidance, there are grey areas. As the Law Society follow and there is a procedure known as the quality said—or was it Liberty?—what happens is that everyone assurance framework, then a chief officer has to jump takes the most risk-averse stance. It is fundamental that through many hoops and hurdles and ask themselves very good and clear guidance is given, because we must the questions, “Was it malicious? How long ago was it? not deter small bodies, volunteers and so on. In fact, it What happened? What was the outcome?”, before they is vital that they are able to come on board and embrace decide whether it is relevant to reveal that. That is why I it, and be clear about what is appropriate. have also said that when that information is revealed to an individual and an employer, they should say why, so The Chair: I call Vernon Coaker, but I ask him to be that the individual and employer understand. as quick as possible as I would like to hear from the Minister. Q248 Diana Johnson: May I return to the issue of CRB checks and their being portable? Am I right in Q252 Vernon Coaker: I shall be quick. It is very recalling that in your review you talked about sector-specific interesting evidence. CRB checks? On the clause that implements your recommendation Mrs Mason: Yes. about criminal record checks for individuals aged 16 or over, if I remember rightly 5,000 checks were made on people under the age of 16. Did you do any analysis of Q249 Diana Johnson: So, that is what you support, what those 5,000 checks were for, and how many of but that is not in the Bill, is it? them resulted in people being stopped from doing something Mrs Mason: No. I believe that in terms of portability as a consequence? There were 5,000 checks; how many it should be for a children’s sector or vulnerable adults’ of them resulted in someone being regarded as inappropriate sector, because the type of information that a chief to do something as a result? officer might choose to disclose would be relevant in Mrs Mason: No, I did not have the opportunity to do terms of whether it was children or adults. It might not that analysis. However, I did think that common sense be relevant vice versa. That does not stop one applying should prevail in any event and that under 16-year-olds for both, for example. should not be left in charge of vulnerable children and adults. Q250 Diana Johnson: I think that is interesting about Vernon Coaker: I understand that, but I was interested the proportionate nature of the decision making, in in the figure of 5,000. terms that you do not have it sector-specific. May I just ask you one other thing? In your review, you also Mrs Mason: The figure came from the CRB. recommended that employers should face fines for scurrilous CRB checks. Is that a real problem? Are too many Q253 Vernon Coaker: It would be interesting for us to employers seeking CRB checks? get some information about the 5,000 and what, if anything, it demonstrates about the consequences—perhaps Mrs Mason: It is a concern raised by many of the the evidence was that there were 5,000 checks but organisations I consulted. I have been told that they ask nobody was stopped from doing anything. That then for enhanced checks when they are not actually eligible gives power to the argument for the Bill. If, on the other for an enhanced check. At the moment, employers or hand, of the 5,000 there were— registered bodies simply tick the box and send it to the CRB. The CRB, as Sir Roger has just said, is an The Chair: Thank you for that. I now call the Minister. operational, functional body. It is not there to check whether that application is correct, although I understand Q254 The Minister for Equalities (Lynne Featherstone): that it does do some sampling. Because there are no I have one quick question. Do you know what percentage sanctions for somebody asking for extra information, of CRB checks are clear? those employers who feel that they want to know everything, Mrs Mason: I will have to go back to the CRB to ask even if they are not entitled to it, may well do so. I am about that, but I understand from my research and my not suggesting that someone who makes a mistake review, that of the figure that I cited of about 4.4 million should be fined, but I think repeat offenders should face checks a year, half of them, or 2.2 million, were repeat sanctions and penalties, because it is inappropriate and checks—perhaps someone was reapplying for their not proportionate. certificate—and 95 % of them were clear.

Q251 Diana Johnson: I just worry about the voluntary Q255 Lynne Featherstone: So that keys in to what you sector, and people who volunteer to do administration were saying about the proportion actually giving some work for small charities and groups. They are not big strength to the reason we are doing all of this. employers; they are not like Tesco, with an HR department Secondly, Sir Roger, I was very comforted by what of hundreds. These people are trying to do their best. I you said at the beginning, because we are all trying to wonder whether you think that this sort of system will find a balance. It is not as though anyone here is trying enable such groups to fulfil the requirements of the to do anything illegal; it is about finding a common-sense legislation. Will it be easy for them to understand balance. Would I be right to say to you both that if there 85 Public Bill Committee22 MARCH 2011 Protection of Freedoms Bill 86 is information that needs to come to light, it will come Terri Dowty: I think people often do not realise that to light in the right place under the scheme—between children can be given reprimands and warnings without barring and enhancing criminals? their consent at the police station. Often, parents do not Sir Roger Singleton: There are several aspects to that, realise the serious nature of what is going on. They Minister. On one point, the ISA is heavily dependent on think that it is a slightly more formal clip round the ear the information that employers choose not to provide, from a policeman, and they do not realise that this because there are guidelines and statutory requirements, results in a record. If they did, perhaps they would be but none the less we are heavily dependent on that. The more careful about seeking legal representation at the scheme has imperfections that are reflective of that. police station. They may find that there is actually a reasonable defence for what is an apparent evidence of The other area—I shall not go into detail, because it guilt. Children often feel harried through the process is in the note, and we are in discussion about it—is and they end up being reprimanded and never really whether there are a small number of instances where understand that they could have justified their actions. people have behaved highly inappropriately towards Parents and children are overwhelmed. They may not children and where, in fact, that information might not have advice. As Helen has said, the whole purpose of come to the ISA. I have in mind, for example, a person the reprimand and final warning system is to keep working under supervision in a youth club—so it is not children out of the system for as long as possible, so it regulated activity—who behaves inappropriately towards seems entirely counter-productive to lock them in it. young people. There is a power at the moment to refer that information— Q258 Rehman Chishti: On that point, but with regard to children not understanding the consequences of their The Chair: I am very sorry. I am afraid that brings us reprimand or caution, am I right in thinking that at the to the end of the time allotted for the Committee to ask moment, in the criminal justice system, when a child is questions of you as witnesses. If you would like to send taken to a police station they have an appropriate adult us something in writing that completes that bit of or parent there at the time? So, there is oversight at the evidence, we would be very grateful. On behalf of the police station when a caution is accepted. Am I right in Committee, I thank you for the evidence that you have that understanding? given us this evening. Terri Dowty: A caution cannot be refused. It is not a caution. It is not like an adult caution; it is a reprimand 6.30 pm or a final warning. There does not have to be consent to Q256 The Chair: We will now hear evidence from it. All there has to be is some evidence that the child was Genewatch UK and Action on Rights of Children. involved in what is alleged, and some kind of admission. Would you like to introduce yourselves and then we will But certainly, in my experience from talking to criminal move on to our questions? solicitors who represent children at police stations, admission can be interpreted very loosely indeed. Terri Dowty: I am Terri Dowty. I am director of Action on Rights for Children. We are an organisation Q259 Rehman Chishti: I am sorry, it is my fault for that specialises mainly in the effects of new technologies the way I put the question. My point is that when they on children’s rights to freedom and privacy and their accept that at the police station, normally they have to data protection rights. have an appropriate adult to go through the effects with Dr Wallace: I am Helen Wallace and I am director of them. That is it, isn’t it? Genewatch UK. Our main interest is the DNA provisions Terri Dowty: Yes. More often that not, though, it is a in the Bill. parent who will be at the police station. Parents can often be very embarrassed and they want to get it over Q257 Rehman Chishti: With regards to the retention with. They feel that the child, by complying, will avoid of DNA profiles, does the Bill in its essence at the more serious trouble. All sorts of other things can come moment meet your concerns about the retention of into play when a parent is there with a child at the police DNA profiles? station. Often parents are in no better position to understand the nature of the allegations and the nature Dr Wallace: Yes, with the exception of a few issues of the process. about children that perhaps we can discuss. Certainly, in relation to innocent people’s records, which is the main Q260 Rehman Chishti: I am sorry, it is simply a issue we have had concerns about, I think it is a clarification. I have been in the legal system at the proportionate approach. In our view, it will very much criminal Bar; it is not simply a child going in and me limit the risk of anyone not being detected and it will at saying, “Now, this is what you have to accept”. the same time address the very serious concerns that a Terri Dowty: Oh no, there would always be an adult lot of innocent people have. A lot of people phone us there. It is the competence of that adult that may be up, send us e-mails and so on, and they are very questionable sometimes. concerned about the retention of records. In relation to innocent people, we think that it is basically the correct Q261 Gareth Johnson: I think you have some expertise approach. In relation to children, we have a concern in the biometric retention in school of data relating to that warnings and reprimands are being treated in the children, too. Is that correct? same way as a conviction. We have concerns about that Terri Dowty: Yes. because, essentially, that system was designed to keep children out of the criminal justice system. In the Bill as Q262 Gareth Johnson: I think it is fair to say that it stands, a child who has two warnings, for example, when the publicity surrounding the biometric retention will have their records retained for life. We think that in schools first came out, there was shock at just how that is excessive, so we would like to see that addressed. widespread this problem was. Is it, in your experience, 87 Public Bill CommitteeHOUSE OF COMMONS Protection of Freedoms Bill 88

[Gareth Johnson] Q267 Vernon Coaker: Did you notice clause 8 in the Bill? If I have read it correctly, clause 8 introduces a new the case that that publicity has reduced the number of power that allows DNA to be taken from people who schools that are keeping such data, and that this legislation have been issued with a penalty notice. That is strange, will just, as a safeguard, prevent it from coming back in given the desire of the Government to move away from again, or do you still see it as a problem that is growing taking DNA. So, clause 8 says that there would be at the moment? “a penalty notice under section 2 of the Criminal Justice and Terri Dowty: Yes, it is a problem. Since it was first Police Act 2001”. mooted that provisions to introduce consent would be Under the 2001 Act, penalty notices are issued for in the Bill, we have reason to believe that, if anything, disorderly conduct. It seems rather strange to me that the process has accelerated. Some school governors DNA will be taken for that, given what is in the rest of thought that maybe they could beat the Bill by getting the Bill. Penalty notices can be given to people under the system installed and were then quite surprised to 18, so that would be a concern, would it not? Do you find that permission for processing—consent to processing not think it rather strange that clause 8 is in the Bill? —would be required, rather than actually taking the Dr Wallace: I think part of the reason is that the key fingerprints in the first place. It is very widespread, concerns that people raised with us were really about though. You are quite right. the issue of retention, so there is a two-year retention limit on that power. The key concern about the existing Q263 Mr Watson: Just to build on the point you DNA provisions is how that data might be misused and made, am I right in saying that in other parts of Europe, the fact that people have a permanent record of criminality, in Scandinavia, the idea that a child would give their if you like, even if they are an innocent person. So our biometric information would be considered a non-starter? emphasis, given the concerns that have been raised with Terri Dowty: Yes. An MEP’s researcher did some us, is on the issue of DNA retention and restricting that work for us recently and found that the practice is not period of retention. nearly so widespread in any other EU country, and certainly not without consent. All of the Scandinavian Q268 Vernon Coaker: It just strikes me as exceedingly representatives expressed astonishment at the idea that odd. The whole Bill is about trying to protect people’s you would take a child’s fingerprint and use it at school freedoms more effectively and there are concerns about for something as trivial as lunch, or registration, or the the taking and retaining of DNA. And yet here we have, library. tucked away in the Bill in this clause, a new power for a penalty notice, for which someone will have their DNA Q264 Mr Watson: So, as I read the Bill, a parent taken. That DNA can then be retained for two years, as would have to give permission, or deny permission, for you say, and the penalty notice can be given to a young that information to be collected, but there does not person. Now I am not sure exactly where it got to, but seem to be a sanction on the school should they choose section 2 of the 2001 Act says that it can apply to to disregard it. children over the age of 10, which is obviously the age Terri Dowty: That is something that we are worried of criminal responsibility. That is certainly an issue that about. What supervision is there going to be of schools, we will come back to during the deliberations of the especially ones with pre-existing systems, that are going Committee. I think that the Government are going way to have to work to bring themselves up to best practice? too far with respect to this measure. What is going to make sure that they comply, and will the Information Commissioner have sufficient elastic to Q269 Gareth Johnson: Terri Dowty, may I take you take on board that duty? We would prefer to see a back to the point that you were making about the sanction in the Bill. There is certainly a precedent for retention of information by schools? You seemed to be that. If you take something like the pupil registration suggesting that you would like to see a criminal sanction regulations, a head teacher commits an offence if he or against a head teacher if they fall foul of those two she fails to remove a child from the school roll when clauses. If that is the case, may I just put a scenario to asked to do so by the parents. That carries a fine. I you? It seems to me that those two clauses are fairly would prefer to see, for the avoidance of doubt, a robust. My reading of them is that if a school were to sanction in the Bill. provide bus passes, for example, to children and it obtained the consent of just one parent and not both Q265 Mr Watson: Some kind of a small fine and an parents, as required by the clauses, they would fall foul offence? of those clauses. Am I correct that you are suggesting Terri Dowty: Yes. that you would criminalise the head teacher in that situation? Q266 Nicola Blackwood: I was just wondering if you Terri Dowty: I am sorry. I do not quite understand— had discovered in your research any reason why schools feel impelled to take biometric data from children, Q270 Gareth Johnson: You said that you wanted to because I really do not understand it. have a sanction imposed on any head teacher if they fell Terri Dowty: No. I have a horrible feeling that it foul of the clauses about retention of biometric material comes from the days of the “Ooh, shiny” approach to by teachers. I am saying that head teachers could fall technology and I think that it coincided with defence foul of those clauses, because the clauses are quite companies, which have largely created these systems, robust in fairly elementary ways. The example that I seeking to diversify their markets and finding a ready have just given is that if schools were to issue bus passes market in schools. Schools like to appear terribly on top and they got the consent of only one parent and not of things technologically and I think that it was actually both, on my reading of these clauses the school would very appealing to them. fall foul of this legislation. 89 Public Bill Committee22 MARCH 2011 Protection of Freedoms Bill 90

Terri Dowty: Yes, I expect they would. conviction you are talking about immediate removal in most cases, unless there is a qualifying offence, or removal after five years. Q271 Gareth Johnson: Would it not then be wrong to criminalise that head teacher? Terri Dowty: Well, I am not sure what the point of a Q276 James Brokenshire: To clarify, were you happy provision is without a sanction. What does it mean? If with the provisions in the Crime and Security Act? in practice nothing is going to happen as the result of a Dr Wallace: No, we were not happy with those provisions. provision—the more hard-working and honest schools We really have two sources of information. First, there will comply with it; some will not and nothing will are the people who contact us and raise concerns, and happen—there seems to be little point in it. There are the other groups we spoke to who felt that it was still already all kinds of provisions like that, which make it very unreasonable, from their personal point of view, to an offence to fail to do something, but Parliament is have those records retained for that length of time if telling them to do it. they had done nothing wrong and not been convicted of any offence. Q272 Gareth Johnson: There would be civil remedies The second piece of evidence is statistics and information. available. I think it would be using a sledgehammer to I want to refer to something ACPO said this morning crack a nut if you were to criminalise a head teacher when they claimed that 1,000 matches per year would and effectively cost him his job through an elementary be lost under the Bill. I do not agree with that figure, breach of this clause. but I think it is moving in the right direction. In the Terri Dowty: It would not necessarily cost him his original Home Office evidence for the Crime and Security job, but I am not sure what point the civil remedies Bill, they claimed that 6,200 detections would be lost serve. Yes, they say that the law, like the Ritz, is open to per year if all innocent people were removed, and 3,800 everyone, but I doubt very much that civil remedies are would be lost per year under the six-year proposal—much in fact available to most ordinary families. bigger numbers. I think the reason why that has gone down is that 1,000 matches is about 500 detections, not Q273 Gareth Johnson: But would you agree with me 3,800. It has gone down because ACPO must have that these are fairly robust provisions. We are disagreeing accepted the criticisms of the way those calculations on the remedies perhaps, but would you agree that they were done. are fairly robust provisions that would cover quite a There were two major criticisms, the first of which I wide range of scenarios? think ACPO accepted, which is that the Home Office Terri Dowty: They are, yes. We are very pleased with made the assumption that if you were not convicted the provisions. We would just like to see a little more and your DNA was taken off the database you would kick to them to make it absolutely clear that this has got never be convicted again for any other offence. That is, to be obeyed. As I say, I worry about provisions without in effect, what they assume—completely wrongly, which sanctions. is why their figures are orders of magnitude in error. The second problem with the Home Office evidence Q274 James Brokenshire: Dr Wallace, I wonder if you is the reason why I still think that ACPO’s number is too could comment on some of the previous points raised high. You will notice that they come to around 500 about the proportion of young people on the DNA detections a year, but I say in my written evidence that it database, and therefore the likely probability of the would be about 400 detections a year if innocent people proportion of innocent young people on that database? were equally as likely to commit crimes as other people Dr Wallace: There are not complete figures about on the database. In fact, we know that is not the case. this, but we know that young people are disproportionately represented. I think the latest figures—about a year The evidence that ACPO rely on is still the same basic ago—showed something like 1 million people had been evidence that was presented in the consultation. The added when they were under 18. We have seen a significant major error, although there a number of smaller errors expansion in arrests of young people, so that means as well, is that it looks only at comparing people on that in terms of the people on the database, we have not their first arrest. We know that the vast majority of only 1 million innocent people but probably a high crimes are committed by repeat offenders with long proportion who are children. It is difficult to be very records, so that will skew the proportion. It is not a exact about the figures, but we hear about large numbers fifth, as ACPO said this morning, of the detections that of children arrested for very minor offences, things like you lose, it is a much smaller proportion. I think you allegedly pulling each other’s hair, allegedly scratching lose perhaps as few as 20 detections a year. The vast their name on a park bench, which count as assault and majority of those are volume crimes; fewer than 1% are criminal damage respectively.All those records are currently rapes, fewer than 0.5% are murders. If you take all the kept indefinitely to age 100. innocent people off the database, you are talking about losing less than one serious crime a year; no one knows Q275 James Brokenshire: Under the existing system the exact number. Those are the people, those very rare of indefinite retention, and the proposals that have not cases, that your three years plus two years is designed to been implemented under the Crime and Security Act capture. In my view, that is why I take the position that 2010, what would happen to those records if a DNA the proposal in the Bill will be sufficient to capture record was taken on that arrest? those serious crimes. Dr Wallace: Currently, under the existing law they are obviously retained indefinitely. If it was under the Crime Q277 Mr Watson: Dr Wallace, that was a very compelling and Security Act provisions you are talking about retention argument, which has convinced me. Yourwritten evidence for six years. Under the current Bill, if there is no is the most clear and concise that I have read all 91 Public Bill CommitteeHOUSE OF COMMONS Protection of Freedoms Bill 92

[Mr Watson] Are you aware of the widespread concern, as I have to say that I am, as an elected representative? Will you afternoon. May I take you to page 4 where you are confirm that for the Committee, please? briefing on clauses 1 to 4 and the deletion of innocent Dr Wallace: We do not have figures, because it depends people’s DNA? You say that, currently, persons whose on who phones or e-mails me, but we do get a lot of arrest was unlawful are worse off than before, because calls and e-mails. Quite a lot of them are from parents. the way the clauses are structured means that their In my written evidence, I mentioned examples like the records would be retained on the police national computer grandmother who phoned me up about her grandson. I and the police national database. Can you explain that a immediately knew what she was going to say—something little more clearly? If there is a justification for why that about the database. He is 12, and a neighbour said that might happen, how can that be? he had broken a fence. The neighbour has Alzheimer’s Dr Wallace: It is very relevant to the discussion you and is not really with it. He was arrested, and another just heard about criminal record checks. I think that a neighbour testified that he did not break the fence. He lot of Members of Parliament even do not realise this, thanked the police for the hot chocolate they made for because it was not a change in legislation but a change him in the cells. The police were sheepish about the in policy when the legislation changed to retain DNA whole incident, but he is still on the database until he is collected on arrest indefinitely. There was a policy change 100. by ACPO to keep all the linked police national computer We also hear a lot of concerns about the potential use records. If you are arrested, you get your DNA and in employment. Children themselves tend not to contact fingerprints taken on arrest, and you get a record on the us, but the parent says, “My daughter’s got really depressed. police national computer. That record contains, until She’s really unhappy because she wanted to work with you are aged 100, a record of that arrest. Those are children. She’s been arrested because some other child, records that can be used in a variety of ways. who may even have been bullying her, has made a false You heard Sunita Mason talk about the 13-year-old accusation against her. What can I tell her? How can girl arrested on suspicion of assault—not convicted; it I get rid of these records?” was not her, but when she was 16 she still could not get a nursery nurse job. I appreciate that the Bill tries to make Q280 Jim Shannon: This is my last question. Are you the process of employment vetting more proportionate; aware of any other bodies that might wish to use it looks at what is necessary and proportionate in that children’s biometric information? Do you feel that that context. But in fact those records are used in a number information should be extended to those bodies—outside of other contexts. those we already know, such as the police, I suppose? I The records are used if you want to travel to the am keen to have your thoughts on that. USA. If you have ever been arrested, you now have to Terri Dowty: I am sorry, I did not— make an application to ACPO to release your criminal record, which is a record of arrest, and you are required to send that to the US embassy and to go through a full Jim Shannon: Do you feel that there are any other visa application process. Police officers see records of bodies that might want to use that information, and do arrest routinely on the street. People tell us that if they you feel that it is right that they should have access to have previously been arrested, the police say, “Oh, you it—outside those who already have it? are known to the police”, but the officers have not seen Terri Dowty: That is a very difficult one to answer. I the circumstances, they simply see that you might have do not know, and I do not think that I can give you an been arrested for an assault when you were 13. answer. Obviously, as far as biometrics, fingerprints and We are trying to argue in the written evidence that it so on are concerned, if that is what you mean—no, I do is not just about use but also about retention. You need not think that outside school there is any call for a policy that deletes these records at some point, if children to use their biometrics elsewhere. There certainly people are innocent. We would like that to correspond is for adults, but that is a different issue and beyond my to the deletion of their DNA and fingerprint records, as expertise. that seems to us to be a logical approach. Q281 Mrs Chapman: On the retention of DNA, I have been made aware that private forensic science Q278 Mr Watson: That seems reasonable. If I may services keep DNA in batches of—I am told—80, and ask a last question, have you been given a reason why that they would not be able to delete just one or two those records are not included in the clauses? records at a time. Do you have any comments on that? Dr Wallace: No. I find that difficult to understand, Do you think that the issue around the retention of because we know that the initial reason was in case your DNA is about its being held on a searchable database, DNA matched. The Bill proposes removing those DNA and that those objections are not so keenly felt if it is and fingerprint records, so why does it not also propose kept at a service where it is not on a searchable database? removing the police national computer records? Dr Wallace: No, people have concerns about the companies as well. One of the key concerns was the Q279 Jim Shannon: When I spoke on this in the retention of samples that were being held in commercial Chamber, I illustrated it with the examples that you put laboratories, so we are very pleased to see the destruction forward, Dr Wallace, about children who pulled hair or of those samples. had verbal exchanges and found themselves on a list for I am not completely up to date on whether this is still infinitum, and that is my concern. Has it been your happening, but a few years ago we discovered that experience that the general public—be they parents, laboratories were being sent the PNC information—in teachers or children—also have concerns about that? other words, the demographic information—along with 93 Public Bill Committee22 MARCH 2011 Protection of Freedoms Bill 94 the samples, so there was a real danger of a breach of parts of the DNA, it probably is possible to come up privacy in that process, which the Association of Chief with a technical solution—I believe the Information Police Officers promised to deal with. We also discovered Commissioner’s Office is discussing that—to ensure that one laboratory kept a copy of everything. It held its that rather than pulling out that number, there is a way own mini-DNA database in the lab. People have been of ensuring that nobody would be identifiable from it. very concerned about such matters, and about use for research. The Chair: I am sorry. That brings us to the end of our business for this evening. I thank our witnesses for The data in batches of 80 are probably less of an their evidence. issue. People have a trust issue: are they really going to delete everything, and is anything going to be left? With Ordered, That further consideration be now adjourned. DNA, if you have the whole sequence of somebody, it is —(Jeremy Wright.) very difficult to anonymise it. You cannot really anonymise it; you can still identify an individual. But bearing in 7pm mind that they are strings of numbers based on only Adjourned till Thursday 24 March at Nine o’clock.