The DNA database and Mark Dixie

Update: The Times also has a useful look at Labour’s claims on this issue.

The Labour Party continue to portray Tory plans to restrict the retention of DNA of those charged, but never convicted, of a crime as somehow being “soft” on criminals, citing the case of Sally Anne Bowman who was killed and raped by Mark Dixie:

Gordon Brown MP, Prime Minister and Leader of the Labour Party, and Alan Johnson MP, Labour’s Home Secretary, will today make a campaign visit to highlight the vital role that DNA plays in tackling violent crime and why Labour has been fighting Tory plans to downgrade the DNA database.

At the visit in Stevenage the Prime Minister and Home Secretary will be joined by Linda Bowman, whose daughter Sally Anne was murdered in 2005.

Sally Anne’s murderer Mark Dixie was convicted through use of the DNA register, having been arrested but not convicted in a pub brawl.

The problem with this line of attack is that the Tories’ plans would not have made any difference in Mark Dixie’s case. When he was arrested his DNA was taken and compared to samples from the Sally Anne Bowman case. There was no need to have his DNA on the database to do that. There was thus no need to retain DNA for those never charged or never convicted to solve similar such cases. All that’s needed is to have a database of DNA collected from crime scenes and to have a policy of checking arrestees’ DNA against that of old crime scenes.

Such an approach is surely a far more proportionate use of DNA, far more respectful of privacy whilst at the same time more focussed on solving crime than retention of the DNA of those never charged with a crime in the first place, or those who have charges dropped or are acquitted.

Meanwhile, Genewatch point out that many of Labour’s other claims about the DNA database have to be taken with a large dose of salt.

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Legislative and Regulatory Reform Act

My take on this is now up at the Magna Carta Plus weblog.

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Why the Legislative and Regulatory Reform Bill is worse than the Civil Contingencies Act

I’ve posted this article on Magna Carta Plus as well as here. It follows up on my earlier article on the government’s new enabling bill.

In my earlier coverage of the Abolition of Parliament Legislative and Regulatory Reform(LRR) Bill, I think I have underestimated how much power it gives to government ministers. I now think this bill actually gives more power to government ministers, in practical terms, than the Civil Contingencies Act (CCA).

The CCA explicitly gives Ministers both the powers of legislating via an Act of Parliament and the powers of the Royal Prerogative. However those powers are supposed to be invoked only in an emergency, are time limited to 7 days, albeit renewable, and have various other constraints such as not modifying the CCA itself or the Human Rights Act. There are protections for the courts and criminal offences created under CCA regulations can carry only 3 months imprisonment.

The possibility that the LRR is worse than the CCA was pointed out to me when discussing the bill in this thread on the usenet group, uk.politics.misc. One poster makes the following points:

  • The LRR is designed ostensibly to be used in the normal course of governing, where the Civil Contingencies Act (CCA) is supposed to be used only in emergencies.
  • The LRR can amend any legislation, where the CCA cannot be used to alter the CCA itself or the Human Rights Act.
  • The LRR can be used to delegate legislative power, without apparent limit, to anybody the specified in an appropriate order.
  • The LRR can be used to alter or abolish any rule of law.

The key matter I hadn’t considered fully before is this. The orders under the LRR can be used to confer legislative power on Ministers, such that they would then be able to legislate without any reference to Parliament at all. Given the government’s ability to control Parliamentary procedure (e.g. to ensure the negative resolution procedure is used), it would be possible for such a transfer of power in the favour of Ministers to occur without any vote in Parliament occurring!

This transfer could be achieved by sneaking the measure into a suitably large and convoluted order that implements a policy strongly backed by the governing party, and hoping it will either not be noticed due to the lack of time for scrutinising the order (this lack of time being arranged by the government) or if it is noticed it will be allowed through because the governing party’s MPs and Peers do not wish to abandon a key policy.

Remember there is no possibility for making amendments that would allow MPs or Peers to selectively modify problematic areas of the parliamentary orders. At best a request to revise the order can be made to the government which the government can consider and reject, or for that matter implement in any way it pleases. The Ministers will be in control at every step unless MPs or Peers vote the order down in its entirety.

I thus fear that if this bill passes we will not only see increasing amounts of legislation passed via parliamentary order with little or no scrutiny, but we will see Ministers being given increasing powers to legislate directly without reference to Parliament. The bill really should be entitled the Abolition of Parliament bill. The Abolition of Parliamentary Scrutiny Bill moniker I’ve been using in some posts is thus too mild a description of the threat this bill makes to Parliament’s role.

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Another enabling bill…

Back in 2004, I got rather concerned about the Civil Contingencies Bill (now the Civil Contingencies Act[CCA] 2004) which allows government ministers to obtain absolute power by claiming there’s an emergency, albeit on a temporary but renewable basis. There is very little a Minister could not do under the regulations the CCA allows, though the Human Rights Act and the CCA itself are protected from alteration.

Whilst I maintain that the legal situation regarding the CCA is as I describe above, and that the CCA is a dangerous law that in the hands of a ruthless government could be used to institute a dictatorship, it does seem to me that it is somewhat unlikely to be used this way in practice. It would be a blatantly dictatorial act and would be seen as such by both the British population and the world at large, and thus it would require a government that does not care about the image it gives to the world.

More likely abuses of the powers in the CCA might occur in the event of a genuine emergency — for example using the CCA to enhance the power of the state with laws that then get backing from a manipulated Parliament, using the emergency as cover. Instituting permanent outright rule by decree using the CCA however is unlikely unless we really do get a would be Hitler residing in Downing Street.

Now, however, the government has a bill going through Parliament which would give Ministers the power to amend, modify or repeal any legislation whatsoever via parliamentary order. This bill is the anodyne sounding Legislative and Regulatory Reform Bill, and I’ve covered it in detail over at the Magna Carta Plus blog.

The crux of the matter here is that the bill provides a fast track procedure, lasting a maximum of 2 months, with which the government can push through legislation, at best subject to a single vote in each of the Houses of Parliament. The orders cannot be amended and there is very little opportunity for MPs or Peers to scrutinise the orders concerned. And if the negative resolution procedure is used to pass these orders, a vote would be required to stop the legislation, instead of being required to approve it. Note that, typically, MPs and Peers will get just 90 minutes to debate parliamentary orders before voting them and then will be asked to vote “yes” or “no” — no chance of amendment is offered though the government can revise the orders under the so-called “super affirmative” procedure.

Various Acts already give Ministers powers to issue such orders in variously limited circumstances, e.g. to make regulations or relatively small legislative changes, as secondary legislation. This bill would enable them to make primary legislation via these orders. Not one Act of Parliament is protected from being rewritten this way, where the Civil Contingencies Act is protected from itself and cannot be used to alter the Human Rights Act 1998. The orders could thus be used to remove what flimsy safeguards there are in the Bill as it currently stands and could be used to change any legislation from the “anti-terror” laws to the Scotland Act (which set up the devolved parliament).

The likely result if this legislation is passed seems clear to me. A government seeking to ensure it gets its policies implemented will tie MPs and Peers up dealing with relatively unimportant Acts of Parliament and push their favoured policies through via parliamentary order, using their control of the committees to ensure minimal scrutiny and that their favoured procedure is used (e.g. the negative resolution procedure which requires a vote to stop an order being passed rather than to approve it).

See Spy.org.uk for an example of a Parliamentary order being passed without a vote (it renewed the Control Orders legislation) after a short debate. This bill would allow all legislation to be passed under the same procedures!

Whilst the Bill’s powers are not technically as severe as the powers granted under the CCA, they are an affront to parliamentary democracy and would be a major step towards rule by decree. And because there would still be a Parliamentary facade to the legislative process used, the exercise of the bill’s powers would not look so blatantly dictatorial as the CCA, even though the effect might well be the same.

Given the bill’s powers would be permanent powers, not emergency powers, it could be used to gradually and subtly relegate Parliament to little more than a talking shop. For this reason, it may actually be more dangerous than the CCA in practice.

It is also worth noting that the government has further plans for diminishing the ability of MPs to scrutinise the governments actions and hold the government to account.

Other sites covering this bill include:

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The Terrorism Bill 2005: A threat to blogs/websites?

Update: I got it wrong on the committee stage of the bill. The committee stage of this bill takes place over 2 days, the 2nd and 3rd of November. See this link. Sorry for the mistake.

I confess to having taken my off the ball on this one. I didn’t realise the Terrorism Bill 2005 (yes another one!) was in parliament until I heard about the 2nd reading and then was slow off the mark to write about it…

Spy.org.uk have berated the British blogosphere for failing to cover/analyse the Terrorism Bill 2005, which, in addition to enabling 90 days detention of terrorist suspects without charge, they argue threatens websites, bloggers and libraries due to the:

  • vaguely defined offences of “inciting or glorifying” terrorism and distributing a terrorist publication, combined with
  • the power of a police constable, acting on his own opinion that the publication is “terrorism-related”, to issue a notice to a publisher to remove or modify an article within 2 days or be deemed to have endorsed the article, thus rendering you unable to raise the defence that it was provided only in the course of providing an electronic service, you didn’t know it was terrorism related AND you did not endorse it.

More detail can be found here and at the Magna Carta Plus weblog. Note that the committee stage of this bill will be over on Wednesday 2nd November. Time to make use of WriteToThem

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Government bans spontaneous protests within 1 km of Parliament

As reported in the Evening Standard and on the BBC and in the “Mayor of London” weblog, spontaneous protests, even if they only involve a single person, are now banned in an area that extends up to 1 km from Parliament Square in London.

This ban has been imposed under the Serious Organised Crime and Police Act 2005, a law which was passed just before the general election in the “wash up” period after it was called. Sections 132 to 138 set out both the nature of the ban and the requirements for organising protests and how the designated area is set out. Key features are:

  • it is an offence to organise, take part in or carry out a demonstration without authorisation in any public place within the designated area (section 132),
  • the offence of organising a demonstration in the designated area without authorisation is punishable by upto 51 weeks in prison and a fine (section 136),
  • the offence of taking part in or carrying out a demonstration in the designated area without authorisation is punishable by a fine (section 136),
  • to get authorisation for a demonstration in the designated area one must apply to the Metropolitan Police 6 days beforehand if reasonably practical or 24 hours beforehand otherwise, and must do so in person or in writing using registered post (section 133),
  • the police must authorise the demonstration but can impose any of the following conditions; restrictions on the length and times of the protest, restrictions on the numbers who can protest, restrictions on the number and size of the banners or placards used, restrictions on where the protest can take place; maximum permissable noise levels. (Section 134) The use of loud hailers is banned. (section 137)
  • violating the conditions of a demonstration is an offence punishable by upto 51 weeks imprisonment and or a fine in the case of the organisers or a fine for other protestors (Section 134),
  • it is an offence to incite someone to commit any of the offences described above (Section 134) punishable by upto 51 weeks in prison and/or a fine

The designated area can be any area the is upto 1 km from Parliament Square. Section 138 gives the Secretary of State the power to issue an order describing the designated area.

This statutory instrument was produced under this section and thus gives effect to this part of the Act and describes the designated area that will come into effect from the 1st August 2005.

Note that under the terms of the Act unauthorised protests are not allowed in any public place, that is any place the public have access to, within the designated area. Thus it covers the public areas of any pubs, hotels, conference centres or other buildings the public have access to.

Also the idea of a “demonstration” is not defined in the Act, leaving unanswered questions such as “Does wearing a T-shirt with a political slogan count as a demonstration?” and “Does organising a meeting of a political group inside a bar in the designated area count as an unauthorised demonstration?”.

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The Prevention of Terrorism Act 2005: Summary

The Prevention of Terrorism Act 2005, i.e. the control orders legislation, is available online here.
This is the version of the legislation that has become law. This article summarises the key features of the Act.

Sections 1 to 4 set out the powers to create control orders. The main points are:

  • Control orders have two forms: derogating control orders are those incompatible with the right to liberty set out in article 5 of the ECHR and thus require a derogation from that article, non-derogating control orders are those which do not derogate from article 5.
  • Control orders can be imposed on a person by a court on application by the Home Secretary, except for non-derogating control orders where the Home Secretary can impose an order without first going through the courts if, in his opion, it is urgent.
  • Control orders can impose any obligation that the Home Secretary (or court where appropriate) believes is necessary for “purposes connected with” preventing or restricting the involvement of the person in “terrorism-related activity”.
  • Possible obligations include prohibitions or restrictions on a person’s possession of specified articles and substances; their use of specified facilities; who they can communicate or associate with; their work, occupation, business or other specified activities; their movements and their place of residence.
  • Other possible obligations include requirements on the person to surrender specified possessions for the duration of the order; to allow access to and searches of their place of residence or any other premisses they have access to; to allow items to be removed from their residence/premisses for testing and to remain in a particular place for specified times or periods or generally.
  • Terrorism-related activity is defined as activity one or more of the following: the commission, preparation or instigation of acts of terrorism; conduct which facilitates the commission, preparation or instigation of acts of terrorism; conduct which encourages the commission, preparation or instigation of acts of terrorism; or conduct which gives support or assistance to individuals known or believed to be involved in terrorism-related activity.
  • Terrorism is defined as it is under Section 1 of the Terrorism Act 2000.
  • The Home Secretary can impose a non-derogating control order on a person if he has “reasonable grounds for suspecting” someone is or has been involved in terrorism related activity, and if he considers it necessary to do so for to protect members of the public from “a risk of terrorism”.
  • Non-derogating control orders last for 12 months but can be renewed by the Home Secretary.
  • Courts must give permission for the Home Secretary’s application for a non-derogating control order unless they find that the decision to make such a control order is “obviously flawed”. They can also quash specific obligations if they believe the decision to impose them is “obviously flawed”.
  • For a derogating control order to be imposed, there must be a public emergency resulting in derogation from article 5 of the ECHR in force.
  • A court can impose a derogating control order if it is satisfied, on balance of probabilities, that the person concerned is involved in terrorism-related activity and if it considers the control order necessary for purposes connected to protecting the public from a risk of terrorism. Note that my earlier article on control orders was thus mistaken about the burden of proof for derogating control orders — house arrest would use the balance of probabilities, but non-derogating orders would not.
  • Derogating control orders expire after 6 months unless renewed.

Section 5 enables a person to be arrested and detained by the police as soon as the Home Secretary makes an application for a derogating control order. This detention can last for upto 48 hours, or with court approval, a further 48 hours.

Section 6 stipulates that derogating control orders can only have effect if a derogation from article 5 of the ECHR is in force. Such a derogation is made by the Home Secretary making an order and putting it before both Houses of Parliament. The order to derogate ceases to have effect 40 days after it has been made, unless both Houses approve of the order. If approved an order lasts for 12 months, but can be renewed by Parliament.

Section 7 sets out various matters on modifying and proving control orders including giving the police the power to enter any premisses, by force if necessary, to search for someone who is to be subjected to a control order, where they suspect the person to be on those premisses.

Section 9 creates various offences. It is an offence to contravene an obligation imposed by a control order, punishable by upto 5 yrs in prison. Obstructing officials who try to enter premisses to search for someone subject to a control order is an offence carrying upto 1 yr (6 months in Scotland) in prison.

Section 13 stipulates that Sections 1 to 9 expire after 12 months, but allows them to be renewed for a year at a time by Parliament.

Section 14 requires the Home Secretary to make 3 monthly reports on the use of control orders, to appoint someone to review the legislation, for that person to review the legislation after 9 months and then every 12 months thereafter (if the legislation is renewed).

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