The UK DNA database, the largest of its kind in the world, has again come under scrutiny by the courts. On Wednesday, the Supreme Court declared that the Association of Chief Police Officers Guidelines (‘ACPO guidelines’), which instructed officers to destruct DNA data only in “exceptional circumstances”, were incompatible with privacy rights under article 8 of the European Convention on Human Rights (‘ECHR’). Many have heralded this a demonstration of the court defining the limits of their constitutional power, particularly in the face of recent criticism of ‘creating law’ with respect to privacy and press freedom. It seems to me, however, the court did not go far enough in giving full effect to the ‘dialogue’ of rights under the Human Rights Act and should given some guidance to the government on any DNA scheme which would be compatible with article 8.
A brief history of the issue should be outlined. UK legislation allows for retention of DNA data, on which the procedure under the ACPO guidelines is that destruction should only occur in “exceptional circumstances”. This regime was challenged in the case of Marper. The House of Lords rejected the claim that it was incompatible with article 8, with Baroness Hale the only judge to find article 8 was even engaged. On appeal to the European Court of Human Rights, the court was “struck by the blanket and indiscriminate nature of the power of retention” which applied regardless of factors like the gravity of offence or age of offender. Therefore, the regime was found to be a breach of article 8.
This made the Supreme Court decision in GC on whether the regime breached article 8 rather easy. Of course, the court said, there was a breach because it says so in Marper. What was more interesting was the relief they gave the claimant. They did not grant a declaration of incompatibility on the legislation because, Lord Dyson stated, a policy could be made within the legislation which was compliant with article 8. They also noted the new DNA regime making its way through Parliament at the moment within the Protection of Freedoms Bill. Therefore, the Supreme Court declared the guidelines, rather than legislation, incompatible with article 8 and effectively left the issue to Parliament to decide since a passage of legislation was in motion.
The Human Rights Act created a dialogue between Parliament and the courts. Because there is no power for the court to strike down legislation, rights are only protected under the Act to the extent Parliament allows. However, the courts have an important role in advising the Government on how to make legislation rights compliant. This is no more obvious than in the ‘declaration of incompatibility’ power under section 4 of the Act. Using this, the courts can alert the Government to a breach of rights and then it is up to the government to respond. Thus the effect of the Act is to create a dialogue between courts and Parliament to reach solutions which satisfy both public need and individual rights.
Therefore, if this model is to work, it is important for the court to give a reasoned opinion on how any new regime may be rights compliant. It therefore may have been useful for the court to give some opinion on what a rights compliant scheme may look like. The Protection of Freedoms Bill does differentiate different categories of individuals, for example convicted and unconvicted offenders, but no judge comments on the specifics of the Bill at all. The judges relied on the judgment in Marper to show the current regime was non-compliant with the ECHR, but the Marper case does little more than state it was the indiscriminate nature of the DNA retention policy that breached privacy rights. In neither judgment does the court give any indication or suggestion of what a rights compliant DNA regime would look like except for it not being a blanket policy.
The problem is that if the courts give no indication or suggestion of what an ECHR-compatible DNA regime looks like there is a risk any new regime will be hauled right back in front of the court for assessment. We face the threat of regimes knocking back and forth between Parliament and the courts to determine whether they are both publicly acceptable and rights compliant. The Human Rights Act created a dialogue between courts and Parliament. To give full effect to this the courts should do more than declare law or policy incompatible with rights – they should give full reasoned opinions for Parliament to take account of.