Debate contribution: Justice Bill: Consideration Stage

Debate contribution by Mrs Naomi Long on 2 June 2026.

MLA

Mrs Naomi Long

Party at the time

Alliance Party

Date

2 June 2026

Type

Debate contribution (made as a minister)

Business

Executive Committee Business

Heading

Justice Bill: Consideration Stage

Assembly identifier

Official Report component 5584585

Read the official Assembly record

Text

Thank you, Madam Principal Deputy Speaker. I am encouraged by the engagement that we have had today. It was a good debate with a good exchange of views, and I thank everyone who contributed to it. It was very helpful. At the outset, as comment was passed on the extent to which the Bill has been amended, I say that that was well rehearsed at Second Reading, and we had the conversation about it. I say it again: there are reasons for the many amendments. Two and a half years of a suspension and our limited mandate on coming back meant that we needed to get the Bill introduced. We had a year and a half in Committee Stage, and many unexpected things emerged during that period. Therefore, it is important that we are able to respond, because this will be the only wide vehicle that will be available in this mandate to make changes to justice matters, with the Bills that deal with sentencing and victims and witnesses of crime being much more constrained in scope. Biometrics, however, which is the group that we are debating, were contained in the Bill at introduction. The amendments that are being made are to make them operate as intended after the stress-testing that we did. Of course, under normal circumstances, that stress-testing would be done before we introduced the provisions. However, I caution Members against voting for individual amendments to that regime that have not been stress-tested with operational partners, given that, even though the Department had developed those over a number of years, stress-tested them with partners and then had to come forward with further amendments, to change the Bill at this stage, without having done that due diligence, endangers what we are trying to achieve, however well-intentioned those amendments may be. With respect to the background to —.

I appreciate that. That is the point that I wish to make. On the background to Part 1 of the Bill on biometrics, a number of Members mentioned the Gaughran and Marper judgements. In S and Marper v UK, the court held that holding biometric material of a non-convicted individual is a violation of their right to respect for their private life under article 8 of the convention. That is what the provisions are designed to address. In Gaughran, the court held that the indefinite retention of biometric material of persons convicted of an offence punishable by imprisonment without reference to the seriousness of the offence and in the absence of any real possibility of a review was a breach of a person's right to respect for their private life under article 8 of the convention. That judgement was also helpful, as it gave guidance on how a compliant retention framework in the UK might be structured. On the basis of that, it appears that the way to do that is to ensure that any new retention framework takes account of the seriousness of the offence, any continuing need to retain the biometric material for policing and criminal reasons and that a review process is in place to allow individuals to request the deletion of their material, which would include taking into account possible changes in their personality and, presumably, their likelihood of further offending. It should also take into account the age of the person when he or she was convicted and the length of time between the offence and the end of the retention period. The new 75/50/25-year retention framework, along with the new review process, addresses those findings in full. I am not saying that it is the only available model. Other models are available. Members have referred to, for example, the Scottish model. However, I caution Members that the Scottish legal system is different from ours. For example, cases can be determined not only by finding someone innocent or guilty but by reaching a verdict of "not proven". We do not have that verdict here. The Scottish system takes a different approach in the retention of data in those circumstances. Simply lifting and transposing arrangements is not necessarily best. The 75/50/25-year model was developed following consideration of Sunita Mason's review of the criminal records regime in Northern Ireland, which recommended that criminal record information should be kept until the subject reaches the age of 100. Limited information is available on retention regimes across Europe, but there is certainly no standout country that sets the standard for good practice. As part of policy development, in 2020, the Department considered the 2014 report by Kristiina Reed and Denise Syndercombe-Court, entitled 'A Comparative Audit of Legislative Frameworks within the European Union for the Collection, Retention and Use of Forensic DNA Profiles'. That report sets out that Estonia, Finland and Luxembourg hold biometric data until the offender dies, and they factor in various timelines for retention after death. Slovakia and Latvia hold material for at least 75 years. Denmark holds material until the offender reaches the age of 80. The Netherlands retains DNA profiles of convicted individuals for 20, 30, 50 or 80 years, depending on the seriousness of the offence and the conviction. While all those were possible models for us to consider, it was the 75/50/25-year retention period model, which included a review mechanism, that we considered, human rights-proofed, took legal advice on and stress-tested with our operational partners. That reflects the guidance that we have from the court and takes into account good practice from the frameworks across Europe without being slavish in following them. It also removes indefinite retention. It has different retention periods for minor recordable offences and more serious qualifying offences, and it means a reduction in retention periods for those convicted of less serious crimes and for children. I think that we are agreed that all of that is good practice. The proposals strike an appropriate balance between the article 2 and article 8 convention rights that engage with DNA profiles and fingerprinting and balance properly the protection of the public, the ability to investigate crime and the human rights of individuals. I have no doubt that Members have come to the Chamber with other amendments in good faith and with good intent. While I understand the intention behind the amendments, I cannot support them. I suggest that, given that the Committee was unable to agree a series of amendments collectively over the past 18 months that could have been tested more fully in cooperation with the Department, it would be unwise to make those changes at this stage, as they could change or make unworkable or indefensible the regime that we have put before you today, which has carefully balanced those rights. I want to be clear about the independence of the biometrics commissioner. They will be absolutely independent in discharging their duties. I am often criticised and scorned when I stand here and say that something is an operational matter for whichever body it may be. It is important that, when people are there to provide public confidence and have an independent role, we do not meddle politically in their independence, and so it must be with the biometrics commissioner. Nor will they be answerable to the PSNI, quite the contrary. The only reporting that is required is as for any sponsorship arrangement between a Department and a commissioner. The biometrics commissioner will submit an annual factual report to DOJ on the exercise of their functions, and that will be laid before the Assembly for Members' information and scrutiny. That does not compromise their independence in any way. The biometrics commissioner will not be accountable to the police, nor could they be so. Much has been said about the issue of age, and much will be said about it in the days to come, as we look at, for example, the minimum age of criminal responsibility. Northern Ireland Statistics and Research Agency (NISRA) statistics show, however, that a greater proportion of youths than adults go on to reoffend. Since 2010-11, the rate of reoffending has also generally been higher for those who committed their first recorded offence in their early teenage years, while that rate steadily declines as age increases. Those are the statistics that we need to look at. There is therefore a need to retain material from under-18s for a period to assist with solving future crime and to act as a deterrent against future offending. Part of the reason that we desperately try to do early intervention with young people is to keep them away from the justice system. Once they enter the formal justice system, there are long-term consequences, of which this is a necessary one. I will now speak about the specific special arrangements for under-18s, which are set lower than those for adults. The retention period for an under-18 who is convicted of a first minor offence and receives a sentence other than a custodial one is set at five years. The vast majority of young people under the age of 18 are not held in custody. The vast majority, particularly those under 14, are dispensed with by way of alternatives; indeed, there is an increase in the use of non-custodial disposals for those aged between 14 and 18. If the sentence is other than a custodial one, the period is five years. The period for an under-18 who is convicted of a first minor offence and receives a custodial sentence of less than five years is five years plus the length of their custody. It is therefore five years, which is the same as if it were not a custodial sentence, plus the length of the sentence. The period for an under-18 who is convicted of a minor offence with a custodial sentence of less than five years but who has a previous conviction moves to 25 years, because they are a repeat offender. It is logical and proportionate to do that, because, if somebody has reoffended, their data and DNA may be more useful in future cases, should they have a propensity to reoffend. Where it is their first offence, there is no presumption that they will go on to reoffend. The period for under-18 cautions, including a restorative caution or an informed warning, is five years. The period for an under-18 diversionary youth conference is five years. It is also important to note that special considerations are given to under-18s by way of the review mechanism, which, again, will be subject to consultation, so that we can look at how we ensure that under-18s, including, in some cases, those who have committed quite serious offences, are not unnecessarily criminalised. That is something that I believe in, and I have defended the work of the Youth Justice Agency at the Dispatch Box many times over the years. The work that it does to divert young people from offending, from interaction with the police and the justice system and from negative engagement in their own communities is vital and excellent work. None of us wants to unpick that, but, equally, if someone is offending repeatedly as an under-18, that has to be taken into account in how long their DNA profile can be held at the maximum. That does not mean that, if that young person grows up and applies for a review of the decision because they have settled and are now a different person, that will be refused. I will move on to the issues around photographs, about which much has been said. Part 1 focuses solely on DNA and fingerprints because the Department's immediate priority is to address the compliance issues arising from the amendments to the PACE (NI) Order made in the Criminal Justice Act 2013 that were never commenced and related solely to DNA and fingerprints. The retention and use of photographs is a more complex issue, and it is important that sufficient time is given for proper stakeholder engagement and full public consultation; I agree with the Member for West Belfast in that regard. I am, however, content with the proposed Committee amendment, which will enable officials to take forward essential work in that area, informed by developments elsewhere, including emerging legislation and technological advances. The Department will work to have the regulations in place for commencement at the same time as the legislation covering the retention of fingerprints and DNA. It is important to recognise that work is ongoing in the Home Office on images and how they will be held. It is useful for us to be consistent, because people may be arrested for different offences, some of which fall within the devolved legislative framework and some of which do not. It is important that people understand clearly and can draw on comparators for how their photographs may be used and how long they may be retained. I am also content with the proposed Committee amendment on commencement arrangements. The Committee has suggested five years. To be clear, part of the issue with commencement is that considerable work needs to be done. We need a qualifying offences amendment order; prescribed circumstances regulations; review mechanism regulations; a PACE (Northern Ireland) code D revision order with a revised PACE code D; and a PACE (NI) application order. We need sufficient time to consult on those measures, draft legislation and progress each instrument through the Justice Committee and the Assembly's affirmative resolution procedure, and it will be an affirmative resolution procedure. In parallel, the Home Office is required to legislate on excepted matters, including arrangements for national security determinations (NSDs). The excepted legislation to which the Member refers in his amendment is something that we cannot legislate on in the House. He has taken issue with my saying that it is not within our legislative competence, but it is not, and we have not sought the Home Secretary's permission to legislate on it today. We cannot legislate on reserved or excepted matters; that is recognised. We will need to work with the Home Office, coordinate and commence it alongside our new retention framework. The PSNI also requires time to develop, test and implement software systems to support the new framework. That will include testing with other criminal justice organisations, such as Causeway and Forensic Science NI. We believe that the Committee's proposed commencement arrangements would work and that we would be able to meet them. If we can move more quickly, we will do so, but much of the work is substantial and lies outwith my Department's responsibility. We intend to commence the new framework as soon as is practical. I will clarify issues with Gerry Carroll's amendment. As I said at the outset, amendment No 38 includes a provision for individuals to receive written notification of when their retention period changes as a result of the making, removal or expiry of a national security determination. NSDs are not within our competence. They lie in the reserved space, and the UK Biometrics Commissioner has responsibility for their oversight. It is not possible for us to amend the Protection of Freedoms Act 2012, which is an Act of the UK Government. Paragraph 2(c) of amendment No 38 is therefore outside the Assembly's competence.

We know how far justice is devolved, and it does not include terrorism. It does not; we know that. That was the case at devolution and has been ever since. That is recognised. We would not have the oversight. Our biometrics commissioner would not have the oversight of NSDs. How would we inform people about changes to their NSD, if we were not in charge of that and our biometrics commissioner had no oversight of it? The UK Biometrics and Surveillance Camera Commissioner has responsibility for that. They would have to do what you suggest around notifying anyone of a change. I cannot impose a duty on the UK Government. We are talking at cross purposes.

The amendment also contains some issues that are within the competence of the Assembly and to which I do not primarily object, but they would be more appropriately addressed through updates to PACE code D. That would be subject to public consultation, and the revised code would then be introduced alongside the new retention framework. While I have some sympathy with what the Member is trying to do, I cannot support his amendment today. I hope that I have been able to offer the reassurances that Members have sought. A question was asked about reporting and scrutiny regarding the biometrics commissioner. In terms of awareness raising, this is key. People have said, "Well, how can you exercise a right that you don't know you have?" Part of the role of the biometrics commissioner will be to raise awareness of the biometrics structures that we are placing in statute. I was also asked directly whether the biometrics commissioner would be able to make recommendations and suggestions and to report on the operability and effectiveness of what we pass today, should we do so: the answer is, "Yes, they would". It would then be incumbent on the Department to consider those recommendations and the feedback, which would form part of the annual report. That report would be laid in the House, which would give Members around the Chamber the opportunity, if they so wish, to seek further changes in future in primary legislation to what we are proposing today. With that said, I draw my remarks to a close.

Amendment Nos 14 to 17 have been taken.

2,902 words. Text as published by the Northern Ireland Assembly.

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