New DNA Database Proposals - ECHR Compliant or not?

I spoke in a debate in Parliament today about the National DNA Database and the Home Office's latest proposals to make their retention policy compliant with the European Convention on Human Rights.  It's nearly twelve months since the European Court passed its judgment in the case of S and Marper which ruled that the Government's 'blanket and indiscriminate' approach to DNA retention on an indefinite basis for those never convicted of any crime was unlawful.  After two false starts, Ministers are now proposing that there should be a blanket six year retention period for anyone arrested but not charged or convicted of any crime.  But questions remain as to whether even this latest attempt is legal.

During the debate, I questioned Home Office Minister Alan Campbell about the issue.  The transcript from Hansard is as follows:

"We have several questions on the proposals in the Crime and Security Bill, which will be debated by the House in greater detail at a later date. However, before I finish my speech, I have one question for the Minister on the advice and consideration that the Home Office has taken on the legality of the blanket, indiscriminate, six-year period, which would not take into account any specific crime. The Equality and Human Rights Commission has written a letter to the Council of Europe, stating of even the revised proposals:

"This fails to address the Committee's decision that 6 years for non-serious offences lacks the required level of proportionality. The Commission believes that treating adults in this category the same regardless of type of offence is too indiscriminate and lacks the required level of proportionality. It does not comply with Committee of Ministers Recommendations Rec(92)1."

It is important to put on the record what consideration the Government have given, even in introducing these proposals, to whether they are compliant with the terms of the European convention on human rights. Indeed, I believe that the Home Secretary's statement in November implied that there was some question whether they were compliant. He stated:

"Although the ECHR"-

the European Court of Human Rights-

"suggested that the seriousness of the alleged offence should be a factor in determining what length of retention was proportionate, the best available evidence indicates that the type of offence a person is first arrested for is not a good indicator of the seriousness of offence he might subsequently be arrested for or convicted of in future."-[Official Report, 11 November 2009; Vol. 499, c. 26WS.]

That statement was made by the Home Secretary.  We can, I am sure, have a detailed discussion about this in future, but it would be interesting to hear responses from the Minister on those specific points."

It is interesting to note that I am still awaiting a response from the Minister, as he studiously avoided giving an answer.  It makes you wonder what legal advice the Home Office have received on this sensitive issue?