Personal information detailing intimate aspects of the lives of every British citizen is to be handed over to government agencies under sweeping new powers. The measure, which will give ministers the right to allow all public bodies to exchange sensitive data with each other, is expected to be rushed through Parliament in a Bill to be published tomorrow.

The new legislation would deny MPs a full vote on such data-sharing. Instead, ministers could authorize the swapping of information between councils, the police, NHS trusts, the Inland Revenue, education authorities, the Driver and Vehicle Licensing Authority, the Department for Work and Pensions and other ministries.

Opponents of the move accused the Government of bringing in by stealth a data-sharing program that exposed everyone to the dangers of a Big Brother state and one of the most intrusive personal databases in the world. The new law would remove the right to protection against misuse of information by thousands of unaccountable civil servants, they added.

Thomas Hammarberg, the Council of Europe’s commissioner for human rights, said he believed Britain had gone too far in helping to bring about a “surveillance society”. In a report drawing on personal data infringements across Europe but “inspired” by Britain’s plan for a new internet, email and telephone database, he added: “General surveillance raises serious democratic problems which are not answered by the repeated assertion that those who have nothing to hide have nothing to fear. This puts the onus in the wrong place: it should be for states to justify the interferences they seek to make on privacy rights.”

He said he was “very worried about the downgrading of the protections of personal information”, adding: “Of course there has to be a balance to be struck. At the moment we have not got it right.”

David Howarth, the Liberal Democrat justice spokesman, added: “The Government shouldn’t try to sneak through further building blocks of its surveillance state. Unrestricted data-sharing simply increases the risks of data loss. This is particularly troubling since the Government has already shown itself entirely incapable of keeping our personal data safe.”

The data-sharing measure is referred to in the Coroners and Justice Bill outlined in yesterday’s Queen’s Speech. It could, for instance, pave the way for medical records to be sent to the Driver and Vehicle Licensing Agency to identify drivers who pose a health risk, or school attendance data being handed to the Department for Work and Pensions to verify social security claims made by parents.

But civil rights groups warned that the possibility of public records being transferred to private companies on a minister’s whim was of even greater concern. Under the existing system, public bodies require primary legislation to authorize the transfer of data to another agency. The new plans would end such parliamentary scrutiny by permitting ministers to use secondary legislation without a full vote of MPs. The Bill sets out how ministers would be able to sidestep data protection and human rights laws that prevent public bodies revealing private information.

NO2ID, a group which campaigned against government plans for ID cards and the associated National Identity Register, said the proposals went far beyond data protection and were intended “to build the database state, concealed under a misleading name”. The group’s national coordinator, Phil Booth, said: “This is a Bill to smash the rule of law and build the database state in its place. Burying sweeping constitutional change in obscure Bills is an appalling approach. Having proved – and admitted – they cannot be trusted to look after our secrets, they are still determined to steal what privacy we have left. Parliament needs to wake up before it has no say any more.”

Civil liberties groups said the new powers could be used in conjunction with the equally controversial plan for a giant database holding details of people’s emails, telephone calls and internet searches. The Communications Data Bill, which would contain this information, was set for inclusion in yesterday’s Queen’s Speech but will now be part of a consultation paper to be published in January.

Mr Hammarberg said Britain’s poor record on data loss had led to an EU-wide debate about the dangers of a surveillance society. He added: “Data protection is crucial to the upholding of fundamental democratic values: a surveillance society risks infringing this basic right.”

The Ministry of Justice said data-sharing was essential for the delivery of “efficient and effective public services, tackling crime and protecting the public”. “Any draft order would require parliamentary approval and a privacy impact assessment,” said a spokesman. “Additionally, the Information Commissioner would have been invited to comment on the proposals. This will ensure any potential privacy issues and risks are identified and examined.

“The power will be exercised only in circumstances where the sharing of the information is in the public interest and proportionate to the impact on any person adversely affected by it.”

www.independent.co.uk/news/uk/politics/the-big-brother-state-ndash-by-stealth-1050576.html

Last month the Home Office revealed that 2,324,879 recorded criminals (40 percent) in England and Wales did not actually have a DNA sample held on the NDNAD. At the same time, the Home Office reported that 857,366 innocent individuals’ profiles are currently held on the NDNAD.

Liberty’s Director Shami Chakrabarti said:

“This is one of the most strongly worded judgments that Liberty has ever seen from the Court of Human Rights. That Court has used human rights principles and common sense to deliver the privacy protection of innocent people that the British Government has shamefully failed to deliver.”

The Home Office is expected to hold a consultation about the retention of DNA following today’s judgment. The judgment would not have affected the outcome of any of the recent, high profile, convictions where DNA evidence has been a significant factor.

Liberty’s Legal Officer Anna Fairclough said:

“Forty percent of Britain’s criminals are not on this database, but hundreds of thousands of innocent people are. Sweeping up the innocent with the guilty does not help fight crime. The Court of Human Rights has protected the privacy of British people so poorly let down by our own government.”

Key passages of Grand Chamber Judgment of S and Marper v the United Kingdom include:

● The Court was struck by the blanket and indiscriminate nature of the power of retention in England and Wales. In particular, the data in question could be retained irrespective of the nature or gravity of the offence with which the individual was originally suspected or of the age of the suspected offender; the retention was not time-limited; and there existed only limited possibilities for an acquitted individual to have the data removed from the nationwide database or to have the materials destroyed.

● The Court expressed a particular concern at the risk of stigmatization, stemming from the fact that persons in the position of the applicants, who had not been convicted of any offense and were entitled to the presumption of innocence, were treated in the same way as convicted persons. It was true that the retention of the applicants’ private data could not be equated with the voicing of suspicions. Nonetheless, their perception that they were not being treated as innocent was heightened by the fact that their data were retained indefinitely in the same way as the data of convicted persons, while the data of those who had never been suspected of an offense were required to be destroyed.

● It observed that the protection afforded by Article 8 of the Convention would be unacceptably weakened if the use of modern scientific techniques in the criminal justice system were allowed at any cost and without carefully balancing the potential benefits of the extensive use of such techniques against important private life interests. Any State claiming a pioneer role in the development of new technologies bore special responsibility for striking the right balance in this regard.

●In the Court’s view, the capacity of DNA profiles to provide a means of identifying genetic relationships between individuals was in itself sufficient to conclude that their retention interfered with the right to the private life of those individuals. The possibility created by DNA profiles for drawing inferences about ethnic origin made their retention all the more sensitive and susceptible of affecting the right to private life. The Court concluded that the retention of both cellular samples and DNA profiles amounted to an interference with the applicants’ right to respect for their private lives, within the meaning of Article 8.1 of the Convention.

Notes to Editors

Background on S and Marper v United Kingdom

1. Liberty agrees that a DNA database can be a valuable crime detection tool. However, repeated legislative changes have rolled out retention policy by stealth so that anyone arrested for even very minor offences can have their DNA held for the rest of their life, even if they have been mistakenly arrested. DNA is relevant only to a small number of serious offenses, mainly involving sexual assault or violence. Liberty believes that the correct and proportionate approach to the National DNA Database would be based on allowing retention of DNA for those convicted or cautioned of these types of serious offense. This approach is the one adopted by nearly every EU and other comparable state.

2. S & Marper v United Kingdom, heard in the European Court of Human Rights on 27 February 2008, establishes if the automatic retention of DNA samples, profiles and fingerprints from those who are not convicted of any offense is a breach of the right to a private life under Article 8 of the European Convention on Human Rights. The government has repeatedly said it has no plans to create a universal database because it does not think the population is ready for the civil liberties implications of that. Liberty believes that the present arbitrary basis on which the database is built is both unsustainable and unjustifiable.

3. S & Marper concerns the legality of amendments to s64 Police and Criminal Evidence Act 1984 which enable the police to retain bodily samples, DNA profiles and fingerprints from anyone arrested for a recordable offense, whether or not they are charged, prosecuted or convicted. Virtually all offenses (except the most trivial) are recordable. Current Government policy is to retain this information, including DNA on the National DNA Database (NDNAD), until the individual dies or reaches 100 years old. Samples, profiles and fingerprints can be destroyed on request in exceptional circumstances.

Facts

S was arrested in January 2001 when he was an 11 year old boy. He has no previous convictions, cautions or warnings. He was charged with the offence of attempted robbery and his fingerprints and samples were taken. Following a trial on 14.6.01 S was acquitted. He subsequently sought through his solicitors the destruction of his samples and fingerprints, but the police refused because of the legislative amendments referred to above (which came into force with retrospective effect on 11.5.01).

Marper was 38 when he was arrested in March 2001. He had no previous convictions. He was charged with harassment of his partner and his fingerprints and DNA samples were taken. By the time of a pre-trial review in May 2001 he had reconciled with his partner who no longer wished to press charges. The proceedings were discontinued. The police refused his request for the destruction of his samples and fingerprints.

European Court of Human Rights

S & Marper applied to the ECtHR to raise the following legal questions:

1.Is there any justification for keeping the original bodily samples from which DNA profiles are generated? Whilst the profiles reveal a limited amount of information about an individual, the samples contain that person’s complete genetic makeup and to retain them requires a very strong justification which the government has not supplied. The government says the samples are needed for quality control purposes and in case it might need to upgrade the database in future. Liberty does not accept this. A future upgrade of the database is a hypothetical possibility which does not justify retention of the samples now. It is likely that the database will soon be so large that an upgrade of the all the profiles is in any event an unrealistic option.

2. Is there sufficient justification for keeping DNA profiles from those not convicted of any offense? Although the profiles (a numerical representation of part of a person’s DNA) may be difficult to decipher to the untrained eye, there are a number of major privacy issues that arise from their retention on the database.

a)  Research is carried out on the database without the consent of those whose profiles are on it. This is only supposed to be for the ‘prevention or detection of crime’ but that is interpreted very broadly so that research into ethnicity for example would be acceptable provided it can be loosely associated with crime prevention or detection.

b)  The NDNAD has an electronic link to the Police National Computer to enable the police to use it for intelligence purposes. The PNC is accessible from over 120,000 terminals in the UK, including non-police bodies. Previously, records held on the PNC were ‘weeded’ so that if you were acquitted or no proceedings were brought, the PNC record would be removed after around 40 days. Now, because of the link between the NDNAD and the PNC and because DNA profiles are kept until death/age 100, the PNC records are also kept. As a solution to the legal implications of this, the police propose to mask some of the information from ‘non-police users’ of the PNC but the system is not yet fully operational. Further, the Information Commissioner (ICO) considers that for the police to keep all this information even for themselves breaches the Data Protection Act 1998.

3. Britain’s DNA database is proportionately the largest in the world. Approximately 4.5 million people have their DNA permanently retained on the NDNAD.

Thousands of DNA samples from innocent people are currently retained

The men’s information was held by South Yorkshire Police, although neither was convicted of any offense. The judgment could have major implications on how DNA records are stored in the UK’s national database. The judges said keeping the information “could not be regarded as necessary in a democratic society”.

Home Secretary Jacqui Smith said she was “disappointed” by the European Court of Human Rights’ decision. The database may now have to be scaled back following the unanimous judgment by 17 senior judges from across Europe.

Under present laws, the DNA profiles of everyone arrested for a recorded offense in England, Wales and Northern Ireland are kept on the database, regardless of whether they are charged or convicted.

Discriminatory

The details of about 4.5m people are held and one in five of them does not have a current criminal record.

Both men were awarded £36,400 (42,000 Euros) in costs, less the money already paid in legal aid. The court found that the police’s actions were in violation of Article 8 – the right to respect for private and family life – of the European Convention on Human Rights. It also said it was “struck by the blanket and indiscriminate nature of the power of retention in England and Wales”.

The judges ruled the retention of the men’s DNA “failed to strike a fair balance between the competing public and private interests,” and that the UK government “had overstepped any acceptable margin of appreciation in this regard”. The court also ruled “the retention in question constituted a disproportionate interference with the applicants’ right to respect for private life and could not be regarded as necessary in a democratic society”.

‘Privacy protection’

The home secretary said: “DNA and fingerprinting is vital to the fight against crime, providing the police with more than 3,500 matches a month. “The government mounted a robust defense before the court and I strongly believe DNA and fingerprints play an invaluable role in fighting crime and bringing people to justice. “The existing law will remain in place while we carefully consider the judgment.”

Solicitor Peter Mahy, who represented the men, said that the decision will have far-reaching implications. “It will be very interesting to see how the UK government respond. “The government should now start destroying the DNA records of those people who are currently on the DNA database and who are innocent of any crime.”

Human rights group Liberty said it welcomed the court’s decision. Director Shami Chakrabarti said: “This is one of the most strongly worded judgements that Liberty has ever seen from the Court of Human Rights. “That court has used human rights principles and common sense to deliver the privacy protection of innocent people that the British government has shamefully failed to deliver.”

‘Invasion of privacy’

Phil Booth, of the NO2ID group, which campaigns against identity cards, said: “‘This is a victory for liberty and privacy. “Though these judgments are always complicated and slow in coming, it is a vindication of what privacy campaigners have said all along. “The principle that we need to follow is simple – when charges are dropped suspect samples are destroyed. No charge, no DNA.”

The Nuffield Council on Bioethics reports on the ethical questions raised by recent advances in biological and medical research. Its director, Hugh Whittall, said: “We agree wholeheartedly with this ruling. The DNA of innocent people should not be kept by police. “People feel it is an invasion of their privacy, and there is no evidence that removing from the DNA database people who have not been charged or convicted will lead to serious crimes going undetected.
“The government now has an obligation to bring its own policies into line.”

Rights breach claim

One of the men who sought the ruling in Strasbourg, Michael Marper, 45, was arrested in 2001. He was charged with harassing his partner but the case was later dropped. He had no previous convictions. The other man – a teenager identified as “S” – was arrested and charged with attempted robbery but later acquitted.

In both cases the police refused to destroy fingerprints and DNA samples taken when the men were taken in to custody. The men went to the European Court of Human Rights after their cases were thrown out by the House of Lords.

They argued that retaining their DNA profiles is discriminatory and breaches their right to a private life. The government claims the DNA profile from people who are not convicted may sometimes be linked to later offenses, so storing the details on the database is a proportionate response to tackling crime.

Scotland already destroys DNA samples taken during criminal investigations from people who are not charged or who are later acquitted of alleged offenses.

The Home Office has already set up a “contingency planning group” to look into the potential implications arising from a ruling in favor of the men.