Could the spooks have a separate copy of the national DNA database?

I think the provisions in the Crime and Security Bill that relate to DNA retention are not intended to be scrutinised properly. It is probably the most difficult Bill I have read. In fact, if I am honest, I have given up; I have decided to “get out more” and read my backlog of Decision Notices.

First, the DNA provisions in the Bill are all expressed as amendments to the Police and Criminal Evidence Act 1984 (PACE), itself heavily amended by several other Acts of Parliament. Second, the Statute Law database organised by the Ministry of Justice in relation to PACE is more than a year out of date. It carries an “Update Status Warning” that amendments to PACE have not yet updated by legislation enacted in 2009; so there is no consolidated PACE legislation, in the public domain, that can be used to assess the effect of the Bill’s proposals.

Finally in this list of gripes, the so called “Explanatory Memoranda” that accompanies the Bill does not “explain” much (e.g. the definition of “recordable offence”; see blog of 30th November 2009). It does not explain the interaction of these DNA provisions with other legislation relating to law enforcement and, most notably, with respect to use and disclosure (rather than just retention) for national security purposes.

So I am not sure whether what follows is correct – however I think the national security agencies may be able to keep copies of personal data that have been removed from the DNA database or indeed maintain a complete copy of the deleted items from the DNA database. If these personal data exist, such a copy the DNA database appears not to be regulated by the Bill, yet DNA personal data from such a database could be accessed by the police in relation to serious crime. In other words, there appears to be a “back-door” that undermines the retention proposals in the Bill.

My reasoning begins with the Security Service Act 1996. This added a “not-a-national-security” function to the role of our spooks; it states that “it shall also be the function of the Service to act in support of the activities of police forces and other law enforcement agencies in the prevention and detection of serious crime”. So it is reasonable to assume the Security Service and other national security agencies process and share personal data in relation to this objective. This can include DNA data from the national DNA database (I have been unable to find something in the Bill that prevents this).

So if DNA personal data can be disclosed and retained by the Security Service before they are deleted from the national database, the Security Service Act allows the personal data to be used on behalf of, or disclosed back to, the police in relation to serious crime whenever needed.

Consequently, for the avoidance of doubt, I have recommended to Parliament that the Crime and Security Bill should specify that the DNA database mentioned in the Bill should the only database that can be established by the law enforcement and national security agencies. I hope you agree.

Reference: I have marshalled my blogs into evidence to the Parliamentary Joint Committee of Human Rights. Although I have had to remove all the jokes and the fine, appreciative comments about Barnsley Football Club, the text describes some serious privacy problems with the provisions in the Crime and Security Bill that relate to retention of personal data on the DNA database. The evidence can be obtained from the Amberhawk website: http://www.amberhawk.com/policydoc.asp  (as well as details of our courses, of course!)

 

Comments

[cb]

I greatly sympathize, also as non-lawyer. I don’t know how lawyers (are supposed to) do this. Having seen a fair cross-section of mental abilities in computers and lawyering and Parliament, I suspect that it is something that has been put up with since for ever.

In computer terms it is a joke. Like handing someone pages of undocumented spaghetti program source code, and the a bunch of textual edits, and instructions to the reader to make the substitution in their head.

Nobody in computers has had to do that since punch cards and batch processing (which mercifully I missed by about 10 years), and it nobody thinks that was in any way a good system (except for the precision it enforced – one thing that is amazing to me is – as far as I can observe - the low rate of semantic “bugs” in drafting)

I suspect there is a lot of guildsmanship with the profession of parliamentary draftsman and legal interpretation specialists – “if we made it easy, anyone could do it”, moreover it is an effective way of shutting down scrutiny of problematic bills. Very few parliamentarian actually enjoy or attempt to fix technical drafting – in practice “scrutiny” on both houses overwhelmingly amounts to asking “probing amendments”, making a short speech on general principles, and then sitting back amazedly when the minister responds everything is fine with the text and intention.

I wonder if in 10 years MPs will have a thin tablet of electronic paper, on which they can see animated the original Act, the proposed amendments highlighted, and the running order for amendments in debate. God forbid even and instant messenger system allowing on to say to other “I’ll take this point in that amendments if you do this one?”

Maybe in 20 years in UK, 5 years after other civilized parliaments….