The Human Tissue Bill, which is due to get its Third reading in the Commons next week, is a typical "Dangerous Dogs Bill" i.e. a political "we must be seen to be doing something" response to the Alder Hey and Bristol "dead babies body parts used for research without the parents knowledge or consent" scandal and subsequent media frenzy.
In what seems to be a now a standard Parliamentary trick, the Government has smuggled in at the end of the text, a controversial section of the Human Tissue Bill, which has nothing to do with the primary purpose of the Bill, presumably so that they can guillotine any debate or amendments and get the section passed through on the nod.
This seems to be very likely given that there are a lot of Government amendments to the main text of the Bill dealing with consent for use of human tissue for medical research and organ transplants etc. which the Government has had to bring in due to massive pressure from medical research academia and industry.
This controversial section deals with DNA analysis without consent and has clauses which have nothing to do with medical research or organ transplants etc. It does not comply with the European Union Constitution Charter of Fundamental Rights:
Right to the integrity of the person
1. Everyone has the right to respect for his or her physical and mental integrity.
2. In the fields of medicine and biology, the following must be respected in particular:
(a) the free and informed consent of the person concerned, according to the procedures laid down by law,"
That means the legal procedures for handling free and informed consent which are, by defintion absent from DNA analysis without consent
The wording of the Human Tissue Bill Schedule 5 ? Section 46: Supplementary Part 2 ? Use for an excepted purpose does not even make a distintiction between statutory public bodies e.g. the Police or the Forensic Science Service and private companies or individuals. Anybody either in the UK or the rest of the universe will be able to conduct DNA analysis for the purpose of "the prevention or detection of crime" or for "national security"
Use of wording like "ANY crime or suspected crime" is simply too broad and is not proportionate, which is meant to be a test under the Human Rights Act.
"establishing by whom, for what purpose, by what means and generally in what circumstances any crime was committed,"
Could someone please explain how DNA analysis can be used to establish the purpose of any crime ? Does this assume some sort of naive "guilt through racial profiling" ?
The Human Tissue Bill is the wrong instrument to deal with the complicated issues of the balance between security, privacy and copyright regarding non-consensual DNA analysis and the issues surrounding the retention and use of DNA profile data, not just the actual DNA tissue samples themselves.
Do you value the privacy of your personal DNA more or less than that of an email, a written letter or a phone conversation ?
For the Police or Security Services to intercept your mail, your email or your phone or computer data traffic, or to use intrusive surveillance techniques, there are well established procedures and some checks and balances under the Regulation of Investigatory Powers Act 2000
If Human Tissue Bill Schedule 5 ? Section 46: Supplementary Part 2 ? Use for an excepted purpose passes into law, then there will be no checks or balances at all to regulate non-consensual DNA analysis.
Non-consensual DNA analysis for law enforcement purposes should be subject to exactly the same procedures i.e. there should be reasonable grounds for suspicion of a serious crime, and a very police senior officer or the Home Secretary should give written permission, and extreme care must be taken to protect the confidentiality of the data obtained. There should be no speculative "trawling" of DNA data, because the risks of "racial profiling" are so abhorrent.
None of the powers of the Human Tissue Agency to inspect premises, to licence laboratories etc. seem to apply to DNA analysis laboratories, because non-consenual DNA analysis is to become an "excepted purpose"
DNA analysis laboratories should have minimum standards and external inspections, simply because if the sample handling and labelling procedures get lax, the extreme sensitivity of the analysis techniques mean that cross contamination with the wrong DNA sample is a real danger.
The issues surrounding DNA and the data which constitutes a DNA analysis profile like privacy, copyright, paternity, racial profiling etc. are important enough and complicated enough to warrant a separate DNA Bill of Rights, and not just a Schedule tacked on to the end of another controversial Bill in the hope that there will be insufficient Parliamentary time for it to be debated or amended.
Contact your Member of Parliament and get this Schedule 5 amended to enforce privacy safeguards regarding DNA analysis without consent.
Use for an excepted purpose
This Part of this Schedule makes provision for the interpretation of ?use for
an excepted purpose? in section 46(1)(a)(ii).
Purposes of general application
Use of the results of an analysis of DNA for any of the following purposes is
use for an excepted purpose?
- (a) the medical diagnosis or treatment of the person whose body
manufactured the DNA;
(b) purposes of functions of a coroner;
(c) purposes of functions of a procurator fiscal in connection with the
investigation of deaths;
(d) the prevention or detection of crime;
(e) the conduct of a prosecution;
(f) purposes of national security;
(g) implementing an order or direction of a court or tribunal, including
one outside the United Kingdom.
(2) For the purposes of sub-paragraph (1)(d), detecting crime shall be taken to
- (a) establishing by whom, for what purpose, by what means and generally in what circumstances any crime was committed, and
(b) the apprehension of the person by whom any crime was committed; and the reference in sub-paragraph (1)(d) to the detection of crime includes any detection outside the United Kingdom of any crime or suspected crime.
(3) In sub-paragraph (1)(e), the reference to a prosecution includes a
prosecution brought in respect of a crime in a country or territory outside the
(4) In this paragraph, a reference to a crime includes a reference to any conduct
- (a) constitutes one or more criminal offences (whether under the law of
a part of the United Kingdom or a country or territory outside the
(b) is, or corresponds to, conduct which, if it all took place in any one
part of the United Kingdom, would constitute one or more criminal
(c) constitutes one or more offences of a kind triable by court-martial
under the Army Act 1955 (3 & 4 Eliz. 2 c. 18), the Air Force Act 1955
(3 & 4 Eliz. 2 c. 19) or the Naval Discipline Act 1957 (c. 53).