I beg to move, That this House
agrees with Lords amendment 40.

With this it will be convenient to take Lords amendments 41 and 42.

The amendments were supported by the Government in the other place and are the result of listening to the debates that have taken place in this House and in Committees of both Houses, including the Joint Committee on Human Rights and the Delegated Powers and Regulatory Reform Committee. Over the summer, we considered those views carefully, and the responses received to the Home Office consultation document "Keeping the Right People on the DNA Database" that was issued in May. We accept the concerns raised by the Committees and other stakeholders about making the necessary changes to the law by means of an enabling power.

The issue of retaining DNA and fingerprints from those arrested but not convicted is an important topic that deserves the full attention of everyone involved in the legislative process. We judge that the approach taken in the Bill gave us a sensible opportunity to demonstrate that we were committed to implementing the S and Marper judgment, to consulting swiftly but thoroughly on the detail of the policy and to giving Parliament an opportunity to approve the policy through the affirmative resolution procedure.

Given the strength of feeling on this issue, and the importance of ensuring that we move forward with consensus, we accept the view that the issue would be dealt with more appropriately in primary legislation. We therefore decided to invite Parliament to remove clauses 96 to 98 from the Bill. As soon as parliamentary time allows, we will bring forward appropriate measures in primary legislation, as set out by my right hon. Friend the Home Secretary in his written ministerial statement yesterday. That approach will allow full debate and scrutiny of the proposals in both Houses. I therefore ask the House to agree with the Lords in their amendments.

I admire the Minister's elegant attempt to stay on the front foot on this issue, but let us be clear: this is a retreat. The Government had wanted to grow the DNA database as a primary policy principle, but they cannot do that now. They wanted to retain profiles on people arrested but never charged with or convicted of any offence, but they have now accepted that they can no longer do that, and hold such information for ever and a day. They also wanted to hide retention away in an order-making power that would have given huge discretion to Ministers, but they have been thwarted by the Lords amendments before us this afternoon.

Finally, they have had to move away from proposals they made only a few weeks ago to retain for 12 years DNA profiles on those arrested for certain offences. It is absolutely right, therefore, that the order-making power should be withdrawn from the Bill. Indeed, as we said clearly, it should never have been in the Bill. We can look, too, at how the provision was withdrawn-on almost the last day of the Bill's consideration in the House.

There is little doubt about the importance of DNA as an evidential tool in prosecuting and bringing crimes to justice. DNA data can form an important part of the evidential case to prove guilt and ensure that serious criminals are brought to justice. The fight against crime, in particular certain serious crimes, depends on the use of modern scientific techniques, but a balance has to be struck between the interests of the community in preventing and detecting crime and the freedom of the individual. The Government have been on the wrong side of the line and their delay in responding to the S and Marper judgment raises a question about their commitment to deal with such a sensitive issue.

The Government are-belatedly-seeking to respond. To be fair to Ministers, the proposals announced by the Home Secretary are a slight improvement on their previous position, but his statement raises a number of issues. The changes do not go as far as we would like.

It is important to examine the statement to understand where the Government are moving now that they are withdrawing those clauses. The Home Secretary said that since the publication of the consultation document earlier this year the Home Office had sought to further the evidence base with additional research. Could the Minister explain what additional research has been undertaken? I am aware of the publication of the document on the Home Office website on DNA retention policy-the re-arrest hazard rate analysis-but as the Minister will be aware, it was discovered that the original scientific approach proposed in the consultation document had not been peer-reviewed, so it was premature to put it out in that form. Indeed, the document that has now been published accepts in part that line of argument. Can the Minister explain who prepared that work? What analysis was made? Was it peer-reviewed? What tests have been applied as to the robustness of the new document that was published alongside the Government's latest proposals?

It is important to understand that, because yesterday the Home Secretary suggested that we could reduce the retention periods and that we might look at what might be described as arrest to arrest analysis, rather than the arrest to conviction approach in the original proposals. Can the Minister explain the basis for that change of view and the change in approach?

The new analysis notes that there are still some important caveats. The document says that there is still some uncertainty about the line that has now been set-the six years-so it would be interesting to hear from the Minister on that point. In changing their view yet again, the Government have acknowledged that even their revised proposals may not be compliant with the S and Marper judgment and the European convention on human rights. The Home Secretary said that although

"the ECHR suggested that the seriousness of the alleged offence should be a factor in determining what length of retention was proportionate"-[ Hansard, 11 November 2009; Vol. 499, c. 26WS.]- he claims that the evidence indicates that such an approach should not be taken. Obviously, there is a risk that the new approach the Government have decided to adopt may not be compliant with the European convention on human rights, so it will be interesting to hear whether the Minister has obtained further legal advice in that regard.

We understand that the Government propose to introduce dilution and greater transparency in the existing discretion of chief police officers to destroy DNA records that they may hold. Can the Minister give any indication of the likely factors? Will there be a right of appeal in those circumstances?

We will consider the distinction that has been drawn in relation to terrorism and national security, but will the Minister explain whether there will be any judicial oversight on the initial assessment that will be undertaken in such cases? I understand from the statement that there is intended to be a two-year rolling review thereafter by a senior police officer, but will there be any oversight or appeal? What rank of officer will undertake that review? It is important to understand the approach that the Government are now seeking to take in moving away from their previous position. Equally, how quickly do the Government anticipate that the changes will be implemented? Obviously, it is now a year since the S and Marper judgment, so it would be interesting if the Minister gave some clarity on how quickly they anticipate the change happening. In the interim, does the Minister anticipate issuing any revised guidance to police forces? We understand that police forces have been told effectively to carry on with data collection as though the S and Marper judgment had not happened. Again, clarification on that would be helpful to inform the debate.

We believe that it is appropriate to introduce an approach to DNA retention similar to that introduced in Scotland, where the DNA profiles of those not convicted of an offence would be retained only in circumstances where charges relating to a crime of violence or a sexual offence had been brought. In those more restricted circumstances, DNA profiles could be retained for a maximum period of five years, subject to judicial oversight during the last two years-in other words, after three years. It is interesting that the Government have sought to take a different view. We disagree with the revised view that they have come up with, but we agree that the use, retention and destruction of DNA records and the oversight that sits behind it requires primary legislation to enable the full, detailed debate and examination in Parliament to take place that would have been prevented if the order-making power had been followed as the Government had originally intended.

This is a significant issue. The number of profiles stored on the DNA database by police forces in England and Wales has reached more than 10 per cent. of the population of England and Wales. Yet, despite that growth, DNA detections have not grown in the same exponential way. More refinement, more focus and more attention are therefore needed. That is why we look forward to holding the debate when we return in the next Session and to the Government finally setting out their views in detail, finally starting to address the underlying fundamental issues and changing the approach that previously existed that certainly appeared to treat us all as potential suspects.

Lords amendments 40, 41 and 42 are very welcome, because they remove the Government's attempt to give themselves a blank cheque to act on such a controversial issue, whereby in light of the European ruling on DNA, they would say, "We'll go away and come up with suggestions in private. We'll write them into law. We'll put them through a Statutory Instrument Committee. There'll be no debate in Parliament. There'll be no primary legislation," and we would have to leave it to the Government to do things on the quiet. That was obviously, from day one, utterly unacceptable on such a major controversial issue as the retention of innocent people's DNA in particular.

The haste earlier this year was quite inexplicable. We had a very good Public Bill Committee. Quite unusually for such Committees, we had the time to debate properly nearly everything that we wanted. We had some extra sittings in the evening to ensure that we could cover every issue properly, without feeling at the end of the debates in Committee that important issues had just gone by and not been discussed. It was a really good, constructive Committee. Yet at the very last minute, with no time for serious debate at all, the Government introduced two radical suggestions with big implications-one on gang injunctions, which we have just been discussing, and the other the blank-cheque approach to DNA that says, "Trust us."

Well, no, on this issue above all, the public and Parliament do not trust the Government to go away, cook up something in a back room and pass it. It is welcome that at long last, right at the end of the process, the Government are accepting Lords amendments 40, 41 and 42, and are withdrawing the ridiculously badly thought-out and hasty proposal, made earlier in the year, that they should decide the matter on the quiet, without any public or parliamentary scrutiny.

We understand that the issue will be back in the Queen's Speech next Wednesday, but at least it will be subject to proper debate, and at least there will be a piece of primary legislation. As for the suggestion that we keep innocent people's DNA for six years, that is still far too long, even if it is an improvement on previous Government practice. A constituent of mine, Tony Hedley, who was on a BBC radio programme yesterday speaking about this, would certainly feel that that was far too long. He had false allegations made against him with regard to a relatively trivial matter. The charges were quickly dropped, but he cannot get his DNA records back; they are still being held by Derbyshire police.

Mr. Hedley has contacted Derbyshire police force many times, and I have written to it. He has contacted 10 Downing street twice, and had acknowledgments but no reply. Derbyshire police force says that it cannot get rid of the DNA records of that totally innocent person until the Government change their policies. I hope that the Government will change them dramatically.

I do not know why, back in February, when the Government wanted a blank cheque, they did not just introduce amendments or new clauses to the Bill, implementing the Scottish practice, which already works very well in that part of the UK. The European Court of Human Rights has already declared that approach to be absolutely acceptable in terms of human rights legislation. If the Government had introduced such a system, the provisions would now be passing into law. Why they did not do that is impossible to understand. They did not need to go away and think about the matter, they did not need to do their own research, however half-baked that research may or may not be, and they did not have to come up with their own suggestions.

What is the basis for the suggestion, which we have heard, that an innocent person whose DNA is taken will either offend within six years or not at all, so the DNA can be got rid of after six years? What is the basis for such approaches? Why not just put into law the well-tried, successful and fairly widely accepted Scottish practice, which already works in part of the United Kingdom?

We have brought forward measures that were not only debated in Parliament, but subject to considerable debate outside Parliament. There has been a long consultation with the public on the measures, and over that time scale additional research has been undertaken, so we cannot be accused of seeking a blank cheque or pushing through measures. Nor can we be accused of proceeding with indecent haste on the issue, particularly when we have addressed the central concern raised in this House and another place, which is that there should have been primary legislation. All those factors have led us to our conclusion.

Let me deal with the point that James Brokenshire raised about DNA detections. He is right that the number of DNA detections has fallen in recent years. Over the past five years it has fallen by 11 per cent. That is because recorded crime in England and Wales fell by 22 per cent. in that period. If there are fewer crime scenes and fewer cases in which DNA has to be taken, it is hardly surprising that the amount of DNA available to the police and being used for detection should decrease.

The hon. Gentleman gave the impression that we were somehow dragging our feet in responding to S and Marper. In Committee, although he disagreed profoundly with what we did, I thought that he agreed with the route that we had chosen. We were trying to respond to S and Marper; the reality is that Parliament disagreed with the route that we chose. I congratulate him, and to some extent Paul Holmes, who speaks for the Liberal Democrats, on their pre-emptive strike this afternoon on measures that will, I hope, be part of a future Bill that is to be debated very soon.

The points about the validity or otherwise of Home Office research, and the issues to do with terrorist suspects, do not fall within the confines of the amendments that we are discussing, so I will not address them on this occasion. The reality is that we are meeting the challenge of S and Marper: we began to meet it within hours of the judgment, because the two individuals concerned were taken off the database. However, we sought, and are seeking, to introduce further measures that address the wider issues that the judgment raised. We are working very carefully with the Association of Chief Police Officers on changes to the database, but until the legislation changes, the practice does not need to change. I hope that the hon. Member for Chesterfield appreciates that. Until Parliament decides that the situation has changed, therefore, the process will continue as it is. As the hon. Gentleman knows, however, we have taken under-10s off the database.

We are confident that we will continue to meet the S and Marper judgment. It is important that we meet it in a timely fashion, but it is also important, as the Committee of Ministers said, that we consider those matters very carefully indeed. We will have longer than we anticipated to do that. The Committee, through the judgment, gave us a very clear steer: although it upheld the point about individual rights for people who are on the database-S and Marper-it also accepted our right as a Government to decide where the balance lies on public protection. It is important that we get the balance right, and if it takes longer than we anticipated, so be it. However, by removing the measures from this Bill and, I hope, putting them into a future Bill, we will be able to do precisely that.

Lords amendment 40 agreed to.

Lords amendment s 41 and 42 agreed to.

After Clause 111