The Coalition’s Programme for Government contains a great deal that is of interest to information lawyers: see here.  But when and how will any of this be given legislative effect?

The Queen’s Speech was delivered on 25th May 2010. The website of the Prime Minister’s office gives a list of the proposed Bills , with further information about each one. Three of the proposed Bills have potential implications for information law.

(i) The Public Bodies (Reform) Bill will enhance the transparency and accountability of quangos: though it is not clear as yet whether enhanced information access rights will play a role in this.

(ii) The Decentralisation and Localism Bill will (among other matters) require public bodies to publish online the job titles of every member of staff and the salaries and expenses of senior officials.

(iii) The Freedom (Great Repeal) Bill is intended to cover a wide range of subjects, to be announced in due course: it may include an extension to the scope of FOIA, and also various provisions in relation privacy (e.g. relating to CCTV cameras, and the DNA database).

Of these Bills, it is the third that is likely to be much the most significant. 


It would seem that the approach to be taken to the retention of DNA on the Police National Database is going to be a hot election issue. The Government has for some time been seeking to introduce onto the statute books new legislation which would enable the DNA of persons who have not been convicted of any offence to be stored for up to six years (see my November 2009 post on this issue). However, a report in yesterday’s Guardian suggests that the Government may scrap the 6 year retention provision in order to get the remainder of the Crime and Security Bill passed into law before the election. Meanwhile, the Conservatives have proposed that the period of retention of DNA relating to unconvicted persons should be three years. The Government has attacked these proposals on the basis that they amount to a criminals charter. Of course, even if particular party political proposals with respect to the DNA database are effective in attracting the popular vote, that is not to say that they would find favour before the Strasbourg Court on a challenge brought under Article 8 ECHR (see further on this issue the Marper judgment discussed in my May 2009 post).

DNA Database – A Controversial Behemoth

The police DNA database for England and Wales is currently the largest DNA database in the world. It has in excess of 5 million profiles, including the profiles of many individuals who have been found to be innocent of any charges made against them. The rapid development of this vast database has inevitably fuelled debates about the rise of the Surveillance ‘Big Brother’ State. Most notably, concerns have been expressed that the database unjustifiably interferes with the individual’s right to privacy, particularly having regard to the retention of records relating to people who have not been convicted of any offence (there are at least 850,000 profiles of such persons on the DNA Database). Earlier this year, these concerns resulted in a judgment by the European Court of Human Rights that the existing approach to the retention of DNA data relating to unconvicted individuals was unlawful (Marper v UK see also my earlier post on the Marper case). Concerns have also been expressed as to the disproportionate presence of individuals from ethnic minorities on the database, particularly young black men, and as to the resulting discriminatory potential which is effectively built into the system.

Two recent important developments suggest that the controversies surrounding the database are only likely to intensify in the coming months. First, the government has opted to use the Queen’s Speech to lay before Parliament a bill which contains a number of inevitably controversial provisions relating to the database (the Crime and Security Bill). Second, a government backed commission, the Human Genetics Commission (HGC) has today issued a report entitled Nothing to Hide, Nothing to Fear?’ which criticises a number of aspects of the existing database system.

The following aspects of the Bill are particularly worthy of note:

·         The Bill contains provisions aimed at giving the police additional powers to take DNA samples from individuals who have been previously arrested for crimes but whose biometric has yet to be obtained. The effect of the provisions is that the police will be entitled to take biometric data from someone who may have been arrested some time ago and before the new provisions came into force (clause 2(1)). The provisions also afford the police new powers to take DNA samples from UK nationals or residents who have been convicted overseas of serious sexual and violent offences (clause 3(1)). These powers would equally apply to convictions occurring prior to the coming into force of the new provisions.


·         The bill also sets out a statutory framework for the retention and destruction of biometric material (including DNA samples, DNA profiles and fingerprints) that has been taken from an individual as part of the investigation of a recordable offence (clause 14). These powers were consulted upon in the Keeping the Right People on the DNA Database paper published in May 2009. In effect, the provisions envisage a somewhat more nuanced approach to the retention of data with retention periods for the various categories of data depending on a number of factors including the age of the individual concerned, the seriousness of the offence or alleged offence, whether the individual has been convicted, and if so whether it is a first conviction. Most notably:


o   the fingerprints and DNA of adults who are arrested but unconvicted will prima facie be retained for a period of 6 years


o   the fingerprints and DNA of adults who are convicted will be retained indefinitely


o   lesser retention periods apply to persons under the ages of 18 and 16 and, in respect of such minors the gravity of the offence will be in issue


o   chief constables are however afforded a power to determine that any retention period may be extended by up to two years for reasons of national security


o   all DNA samples must be destroyed six months after being taken.


·         The Secretary of State will be afforded powers to make a statutory instrument prescribing the manner, timing and other procedures in respect of destroying relevant biometric material already in existence at the point the legislation comes into force. This will enable the Secretary of State to ensure that the retention and destruction regime set out in this Bill is applied to existing material (clause 19).


·         The National DNA Strategy Board which already exists to oversee the operation of the database will be put on a statutory footing (clause 20).

It remains uncertain whether any of these provisions will make it onto the statute books in advance of the forthcoming general election. However, it must be said that the growth in police powers which would be afforded under the Bill does not sit particularly comfortably with the serious concerns as to the existing system identified in the report from the HGC. Those concerns include, not least, concerns about the disproportionate representation of members of ethnic minorities; the retention of data relating to unconvicted persons for any period of time and, further, the problems of function creep.

DNA Database – The Age of Innocence

The Government has today proposed new rules for the retention of DNA profiles and fingerprints on the police national DNA database.  The proposals, which are made in the context of a public consultation process (‘Keeping the Right People on the DNA Database’), come in the wake of the Marper judgment (4 December 2008). In Marper, the ECtHR held that a blanket policy under which fingerprints, cellular samples  and DNA profiles were indefinitely retained by the police constituted a disproportionate and, hence, unlawful interference with Article 8 rights to privacy. The new proposed rules aim to circumvent the problems posed by having a blanket indefinite retention policy by varying the length of time that data can be retained depending in the innocence of the suspect and the severity of the crime in respect of which they were arrested. Thus, the DNA profiles and fingerprints of individuals who are arrested but not convicted in respect of minor offences will be destroyed after a period of six years; individuals who are arrested but not convicted for more serious violent and sexual offences and terrorism-related offences will have to wait twelve years for their DNA profiles and fingerprints to be destroyed; individuals who are convicted of an imprisonable offence will have their DNA profiles and fingerprints retained indefinitely. The proposals have received a rebarbative response from civil liberties campaigners, many of whom had expected the Government to destroy some 850,000 DNA profiles, fingerprints and samples in response to the Marper judgment. Of course, the question has to be posed whether it can ever be a proportionate interference with privacy rights to retain data in respect of individuals whose guilt was never established in respect of the offence for which they were arrested and who must, in the circumstances, be deemed innocent. The Government’s answer to this question appears to be that the interference is justified because: (a) criminology research suggests that, over time, the retained data can be used to convict those ostensibly innocent individuals of subsequent crimes; and (b) accordingly, retention of the data will constitute a vital weapon in the fight against crime. The presumption underlying this answer appears to be that, in a statistically significant number of cases, individuals who appear to be innocent in respect of one crime are in fact destined to go on to commit crimes in the future, such that it is legitimate for their data to be retained for a relatively substantial period of time (either six or twelve years). Whilst the more nuanced approach to the retention of DNA profiles may be relatively well placed to survive a legal challenge in the domestic courts (see further the House of Lords judgment in Marper [2004] UKHL 39, [2004] 1 WLR 2196), it remains to be seen whether the ECtHR would regard that approach as falling within the four corners of the justification defence under Article 8(2).

Rowntree Report on Database State

The Joseph Rowntree Reform Trust has today published its report ‘The Database State’. The report purports to amount to the most comprehensive map of central government databases yet created. In total 46 databases across the major government departments were considered in the report, including, for example, the national DNA database, the national pupil database, the NHS detailed care record system and the automatic number-plate recognition system. In summary, the report concluded that:

  • a quarter of the 46 databases reviewed were ‘almost certainly illegal under human rights or data protection law; that they should be scrapped or substantially redesigned’ (including, for example, the Contactpoint index of all children in England and the national DNA database – on the latter database, see further the January 2009 post on the Marper case);
  • ‘more than half have significant problems with privacy or effectiveness and could fall foul of a legal challenge’ (including, for example, the NHS Summary Care Record and the National Pupil Database);
  • fewer than 15% were ‘effective, proportionate and necessary with a proper legal basis for any privacy instrusions’;
  • Britain was generally out of line with other developed countries as a result of its comparably greater tendancy to centralise and share records on sensitive matters like healthcare and social services; that ‘the benefits claimed for data sharing are often illusory’.

Along with the House of Lords Report on the Surveillance Society published in February 2009 (see further the February 2009 post on the Lords Report), this report is likely to increase pressure on the Government to reexamine a raft of policies on data collection, management and storage.

Executive Summary: