Media reports about the Counter-Terrorism Bill 2008, currently being debated in the House of Lords, seem to be focussed exclusively on the 42 days internment without charge issue, which may or may not be dropped by the obstinate, unelected, Labour Prime Minister Gordon Brown.
The Labour Home Office Minister, former naval Admiral, and military intelligence chief, Lord West of Spithead, attempted to defend the indefensible:
Lord West of Spithead (Labour)
We have to be careful that we do not move towards a Big Brother-type society. I know that the Committee is conscious of that; I certainly am when I am sitting at my desk in the Home Office looking at these issues.
The Orwellian doublethink of this Labour Government, and of their security bureaucrats, apparatchiki and political commissars is always evident when they shy away from the accusation of creating a Big Brother surveillance society, whilst simultaneously plunging ahead with creating exactly the omnipresent surveillance and snooping infrastructure which forms the foundation of such a society.
According to the novel, doublethink is:
The power of holding two contradictory beliefs in one's mind simultaneously, and accepting both of them....To tell deliberate lies while genuinely believing in them, to forget any fact that has become inconvenient, and then, when it becomes necessary again, to draw it back from oblivion for just so long as it is needed, to deny the existence of objective reality and all the while to take account of the reality which one denies -- all this is indispensably necessary.
Lord West then went on to use a weasel worded bait and switch justification, that the proposed Clause 19 Disclosure and the intelligence services powers, regarding DNA samples and analyses and databases, used for Counter Terrorism, which are currently not "on a firm legal footing" i.e. are actually illegal, should be made legal, to allow DNA checks and sharing with foreign intelligence agencies DNA samples e.g. those found at "terrorist training camps".
The "bait and switch" is that this Counter-terrorism Bill grants powers under Clause 18 Material not subject to existing statutory restrictions which are not strictly limited to terrorism investigations, but are generally applicable all crime, no matter how petty.
18 Material not subject to existing statutory restrictions
2 (b) for purposes related to the prevention or detection of crime, the
investigation of an offence or the conduct of a prosecution, or
Lord West went on to say:
Lord West of Spithead (Labour):
The provisions on the retention and use of fingerprints and samples have three objectives: first, putting a counterterrorism DNA database on a firmer legal footing; secondly, allowing such samples taken under the Police and Criminal Evidence Act and the Police and Criminal Evidence (Northern Ireland) Order to be used for national security; and, thirdly, making it easier to allow fingerprints or samples taken under the Terrorism Act to be placed on the National DNA Database.
Clause 18 puts DNA and fingerprint material that is not currently subject to statutory restrictions on a statutory footing permitting law enforcement use for certain purposes. This material includes samples obtained covertly under Part III of the Police Act 1997 and Part II of the Regulation of Investigatory Powers Act 2000. For example, under the Police Act, a warrant may give the police the power to enter someone's home and take away some property in order to obtain a sample. RIPA authorises both covert surveillance and the use of covert human intelligence sources. Unlike the Police Act it does not allow the interference with property.
However, during the course of surveillance, a DNA sample may be lawfully obtained from property without the type of warrant in the Police Act. A good example of this might be where a person under surveillance discards a cigarette or a drinks container. The discarded cigarette or drinks container can be collected covertly and a sample taken. Or, should a covert human intelligence source be used, the person under surveillance could visit the source's house and the sample could be taken from a tea-cup. It also includes material supplied by another law enforcement authority which, by virtue of Clause 18(5), includes both domestic and foreign law enforcement authorities--for example, the French police.
That is an extremely dangerous power, to covertly enter premises and steal a DNA sample, without the person's consent or knowledge, and then to analyse it , again without consent. This must only ever be done under the most exceptional circumstances, under the strictest, independent safeguards, and with provisions for correcting the inevitable mistakes., none of which exist in this Bill.
Taking DNA samples, without them being cross-contaminated is tricky enough for trained Scene of Crimes specialists, with sterile equipment and protective clothing etc.
Any DNA samples obtained covertly by Covert Human Intelligence Sources (CHIS) i.e. informers or undercover agents, or through sanctioned burglary, without these precautions, must be scientifically suspect.
Taking, say, a DNA sampling swab from a surface, or collecting some hairs with follicles from a bathroom or hair brush etc, must eventually lead to DNA samples of entirely innocent people being taken and analysed, as well as those of an alleged terrorist suspect.
Since the covert taking of DNA samples are not specifically mentioned in the Police Act 1997 Part III Authorisation of action in respect of property, under which "property interference", i.e. legalised breaking and entering into homes or vehicles, usually for the purposes of planting electronic bugging or tracking devices is authorised, there will be no separate audit trail for covert DNA sampling attempts, either by the senior authorising Police officers, or by the Chief Surveillance Commissioner, the Rt. Hon. Sir Christopher Rose.
Remember that DNA tissue samples are not "property", they are physically part of a human being.
Since DNA is not mentioned in the Regulation of Investigatory Powers Act 2000 or the Intelligence Services Act 1994 or the Security Service Act 1989, then there will also be no role for the Intelligence Services Commissioner, the Rt. Hon. Sir Peter Gibson, to look into any individual cases either, or even to be informed about them, if such covert DNA sampling is undertaken by the UK intelligence agencies MI5 the Security Service or MI6 the Secret Intelligence Service etc.
Neither would any covert sampling of DNA, undertaken by UK Military Special Forces e.g. the SAS or the Special Reconnaissance Regiment etc. be audited or independently supervised in any way.
The Human Tissue Act 2004 Schedule 4, like the Data Protection Act 1998 section 28 National Security etc. provide huge exemptions for "national security" or for "the prevention or detection of crime", so they provide no effective protection for the innocent individual either.
Finally, the provision applies to samples otherwise lawfully obtained in the interests of national security for the prevention/detection of crime, the investigation of an offence, the conduct of a prosecution or for purposes related to the identification of a deceased. Such latter material might include material obtained during a criminal investigation other than through the exercise of covert powers--for example, during a search, from a crime scene or lawfully provided by a body other than another law enforcement authority, perhaps from the intelligence services of another state.
The Home Office is clearly stating that this is not just for terrorism, but is applicable to all crimes, no matter how petty.
DNA and fingerprint material obtained in this way will form the material that is stored by the Met on the CT DNA database. The principal purpose of Clause 18 is therefore to provide a firm legal base for this database.
Which must mean that the current database is illegal, or can currently be challenged in court, as it clearly breaches the Human Rights Act 2000, Article 8 of the European Convention on Human Rights:
- Article 8 Right to respect for private and family life
1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
It is hard to think of anything which could be a bigger violation of Article 8 than secret sampling of your DNA, by the tentacles of the surveillance state:
Incredibly, if this Counter-terrorism Bill is passed, then the secret CT DNA database will have some sort of statutory footing, but the massive Police National DNA Database, will not.
These amendments to Clause 18 seek clarification on the samples against which DNA and fingerprint samples obtained through legal covert surveillance can be checked. The amendments seek to prevent DNA samples and/or prints lawfully held by a law enforcement authority being used for the purpose of preventing or detecting a criminal offence under the law of a country outside the UK.
The terrorist threat requires both national and transnational, multi-agency co-operation. It is important that we are able to share our data with national and international partners so that we can properly protect our national security.
Clause 18(4), to which these amendments apply, defines "crime" as,
"a criminal offence ... under the law of ... the United Kingdom or of a country or territory outside the United Kingdom".
The effect is that covertly acquired samples can be checked against other samples for, among other things, the purposes of a criminal investigation in the United Kingdom. Additionally, our covertly obtained samples can be checked against other samples, including those held by a foreign Government or agency, for the purposes of, among other things, a criminal investigation in a foreign country--terrorist training, for example.
We are resisting these amendments because there is a real need to share this data internationally, especially where terrorism is concerned, and there are appropriate safeguards in place. For example, we may have obtained samples during a covert operation of a group of individuals we believe to be involved in terrorism. Some time later, a sample may be found overseas by a partner agency that arrests an individual at a terrorist training camp. Clause 18, unamended, allows us to check the samples we hold, which are not subject to statutory provisions, with samples held overseas. The clear benefit of such comparisons is that we can build up a much better picture of the dynamics within complex terrorist networks which span the globe. This is currently crucial to counter the threat that we face. Being able to build up this clear picture is of great and tangible benefit to our national security.
There are safeguards against the abuse of samples held subject to Clause 18. In line with his existing powers, the Information Commissioner will provide independent oversight of the database with regard to data protection issues.
Yet Another Job For The Information Commissioner - where is the extra budget for him to accomplish this with ?
The Information Commissioner, Richard Thomas, is not going to be involved in any authorising any individual DNA sampling cases, is he ?
How can you complain that your innocent DNA has been sampled covertly, and demand that it is removed from the Counter Terrorism DNA database, if you do not know that this has happened ? You will not be able to use the Data Protection Act 1998 to find out because of the magic words "national security".
Additionally, the Metropolitan Police Service will liaise with the newly appointed forensic science regulator to establish standards for DNA analysis, validation of the CT DNA database and protocols for international exchange of DNA data. Working with the custodian of the national DNA database, the MPS will ensure compliance to standards it has set, which are accepted and adhered to by forensic laboratories. Additionally, it will work with the custodian to develop new protocols for cross-searching between the national and CT databases, ensuring that public confidence, counterterrorist investigations and national security are not compromised.
The Forensic Science Regulator, Andrew Rennison, is a former police officer, appointed by the Home Office, who will be concerned with checking that different forensic science laboratories are keeping up to an acceptable standard of scientific accuracy etc.
He does not appear to have any role or power to investigate or to correct individual complaints about the Police National DNA Database , let alone the even more secret Counter Terrorism DNA database.
The Metropolitan Police's DNA expert and also the Association of Chief Police Officers spokesman on this topic, who will, presumably be in charge of any such liaison about the CT DNA database, is the controversial Gary Pugh, who uttered some totalitarian evil eugenics style statements that children should be kiddy printed and stigmatised for the rest of their lives as potential criminals.
See the previous Spy Blog entry ACPO spokesman: Eugenics and kiddy printing - incompetence or spin ?
None of the above are the right sort of strong, independent safeguards, which might convince the public that such extraordinary powers cannot be abused against innocent people.
What is the mechanism for correcting the inevitable mistakes ?
Lord West even referred to, and approved of, the deliberate policy of bureaucratic obstruction, which attempts to deny innocent people their right to have their DNA samples removed from the National DNA Database - you can write to the Chief Constable, who automatically refuses, but , if you persist, you might get lucky and after a couple years, they might review your case and appear to comply.
N.B. This only applies to the Police National DNA Database, there is no provision for removal from the Counter Terrorism DNA database, which will be exchanged with foreign governments etc.
Noble Lords will be reassured to know that this definition of crime is already included in paragraph 20(4)(a) of Schedule 4 to the Terrorism Act 2000. I hope that I have been able to reassure the noble Baroness and that she is able to withdraw her amendment.
This reference to the Terrorism Act 2000 seems to be wrong - there does not appear to be any paragraph 20(4)(a) of Schedule 4.
The Liberal Democrat spokesperson, Baroness Miller of Chilthorne Domer and the Conservative spokesperson Baroness Hanham, did try to make some of these points, especially about the "bait and switch" and the further lack of safeguards regarding secret DNA sampling, which could be abused for investigations which have nothing whatsoever to do with terrorism. They also , rightly, raised the issue of the use of what was heralded at the time as "anti-terrorism" legislation, the Anti-terrorism, Crime and Security Act 2001, to seize the assets of Icelandic banks, something which has unnecessarily insulted the Icelandic people, by falsely treating them as terrorists.
However, this is the Lords, and they are pretty useless in actually voting against the Government, when the Commons has failed to examine the detailed issues properly, as they have failed to do over this secret DNA snooping issue.
Their Lordships might get around to delaying or perhaps defeating the Labour Government control freaks over the unwanted 42 days internment without trial clauses, but it will be a Pyrrhic victory, if the rest of the repressive Counter-terrorism provisions sneak through.
The Opposition should not allow themselves to be manipulated by falling for the old trick of misdirection. Instead of concentrating all of their resources against just the most controversial bit of this Bill, the 42 days internment without charge issue, they should reject the whole Counter-terrorism Bill in its entirety.
The Government should start again, and produce what they originally promised , back when Charles Clarke was the Home Secretary i.e. an agreed simplification and consolidation of the vast hodge potch of anti-terrorism legislation, with cross party support.
This current Counter-terrorism Bill has turned out to be simply more of the same legislative mess, adding more repressive powers and more complexity, and destroying a few more of our liberties and freedoms.
It will not make us any safer from real terrorist attacks, whilst increasing the chances of false accusations and bureaucratic mistreatment of innocent people, something which will only help to recruit more terrorists