We reported last week the Supreme Court ruling in R (on the application of GC) (FC) (Appellants) v The Commissioner of Police of the Metropolis (Respondent) in which the majority found that they could interpret the DNA retention provision in the Police and Criminal Evidence Act (PACE) in such a way that it would be compatible with article 8 of the ECHR.
Not only that; the Court concluded that such a reading could still promote the statutory purposes: ” Those purposes can be achieved by a proportionate scheme.”
Well here’s a mystery. DNA fingerprinting has been with us so long now we seem to have forgotten its significance. When the connection was made in 1984 between the taking of DNA samples and the detection of crime the PACE quickly followed. If the policy and objects of PACE are not to provide the terms of reference for the taking, storage and use of such evidence in criminal cases, what is the Act for? And Section 64(1A), in particular, was introduced, in Lord Rodger’s words:
to ensure that, in future, instead of being destroyed, samples taken from suspects would be retained indefinitely and so remain available to the police on the national DNA database. This would protect the public by facilitating the detection and prosecution of the perpetrators of crimes 
A chronicle of a disappearance
In the space of just over a decade, a fundamental feature of the legislative scheme underlying PACE seems to have been stamped out of existence. How has this happened?
- Until 2001, the police were required by law to destroy fingerprint or DNA samples taken from suspects during the course of an investigation.
- In 1997 an elderly woman was attacked and raped by an intruder in her flat.
- In 1998 a saliva sample taken in an unrelated burglary matched the DNA profile obtained from the swabs taken from the victim
- The defendant was acquitted because the sample had been unlawfully retained
- In 2001, following the public outcry, the government legislated to allow the police to retain all fingerprints and DNA samples taken from suspects during the course of an investigation to be retained and used for the purposes of prevention and detection of crime and the prosecution of offences.
- In 2004 the House of Lords turned down an appeal against the effect of this provision, observing that the benefits of the larger database that it had brought about were manifest, and that the retention of DNA samples did not constitute an interference with the right to privacy under Article 8, or if it did, that the interference was justified by the public interest in the detection and control of crime.
- In 2008 the Strasbourg Court ruled that a broad policy of retention could never be justified by public interest considerations within the meaning of Article 8(2)
- Legislation was drawn up in response to this ruling but not brought in following the change of government in 2010
- In 2011 the Supreme Court declares that the provision could be so interpreted that the police had acted unlawfully in following a blanket policy to retain all samples
So where have all the statutory purposes gone?
Into the recycle bin, every one.
After a dozen years under the interpretative obligation of the Human Rights Act (which requires the courts to read down legislation in a way that is compatible with Convention rights) the courts have become highly adept at discarding the pith and substance of statutory provisions in favour of Convention-compatible ones – or at any rate recycling the former in order to fashion shiny new rights-compliant statutory purposes. Famous examples are R v Director of Public Prosecutions, Ex p Kebilene  2 AC 326 , R (L) v Commissioner of Police of the Metropolis  1 AC 410 and Ghaidan v Godin-Mendoza  UKHL 30.
This is why the mechanism for declaring such provisions incompatible has been invoked so rarely; the process is cumbersome and controversial compared with the “quick-fix” judicial solution of simply prodding the offending provision into shape in court.
Does this matter?
If this means that there is a quiet, cheap way of massaging our laws into conformity with the Convention, why fuss?
The problem is that old potato, parliamentary sovereignty. Section 3 of the Human Rights Act does not authorise the courts to substitute themselves as lawmakers by amending non-compliant legislation. Sections 3(2)(b) and 4(6)(a) carefully preserve the principle of parliamentary sovereignty by providing that incompatible primary legislation shall remain fully effective unless and until repealed or modified. So if the courts find that the statutory wording betrays a purpose that is incompatible with the Convention they must say so, and give Parliament the chance to amend it, either by enacting by primary legislation or under the “fast track” remedial procedure laid down in section 10 of the Human Rights Act.
The obligation to interpret a statutory provision as far “as possible” in accordance with Convention rights is not limited to the courts; it applies to all public authorities. This means that the public authority, to avoid acting unlawfully under Section 6 of the HRA, is obliged to decide first whether the Act of Parliament “can be read or given effect in a way which is compatible rather than incompatible with the Convention rights.”
Given that most public authorities are not experts in international human rights jurisprudence, it is perhaps natural to assume that they are not acting unlawfully if they read the provision in its natural meaning and move accordingly. Not so, says the Supreme Court. A provision which appears to confer a discretion, with the intention that used to promote the policy and objects of the Act, can only be validly exercised in a manner that is compatible with the Convention.
Mr Padfield and the Milk Marketing Board
A central bulwark against unrestrained government power – that no law grants unlimited discretion and the courts will police those limits – seems to have been forgotten here. At least not forgotten, because the minority voices in the Supreme Court were very concerned about it. Back in the sixties the House of Lords ruled that the Agriculture Minister could not rely on the permissive words of the relevant Act to ignore complaints by dairy farmers against the Milk Marketing Board. He was not entitled, in other words, to use his discretion to thwart the policy of the Act, which was to provide the terms of reference for the submission of complaints to a committee of investigation.
This famous judicial rejection of unfettered discretion was all about keeping government ministers within the bounds of their legislative mandate. And determining this mandate, it was necessary, in the words of Lord Upjohn, to look
at the Act and its scope and object in conferring a discretion upon the Minister
With respect, in this case the majority has focussed almost entirely on the word “may” in the PACE provision, disregarding that very “scope and object” in order to find what they wanted to find, in other words that there was some implicit intention behind the scheme to created only a limited DNA basis. But it is difficult to understand why this should be the case, given the legislative history of the provision. As Lord Rodger said
The truth is that Parliament wanted to eliminate the danger, which existed under the pre-existing legislation, that valuable evidence would be lost and potential prosecutions of the guilty based on the latest science would be jeopardised if material had to be removed from the database. Providing for the material to be retained on the database indefinitely was therefore the fundamental feature of the amending legislation which inserted section 64(1A) into PACE.
Anything other than the most contrived reading of the provision describes a power which, save in exceptional circumstances, must be exercised so as to retain the data indefinitely in all cases. Section 64(1A) could not, therefore, be read or given effect so as to permit the power to be exercised proportionately in the way described in by the Strasbourg Court in Marper v UK. As Lord Brown observes, it is hard to see, in the face of such a strong statutory direction, how it is appropriate “to place upon section 64(1A) a construction which denies the police the ability to exercise their data retention power compatibly”
The tendency of the courts to negate the defining feature of legislation in their anxiety to read down provisions in conformity with the Convention is adding fuels to the flame of the Strasbourg controversy. The truth of the matter is that most Convention-non-compliant provisions are just that: public authorities acting under them are accordingly protected by section 6(2)(b) HRA; if a challenge arises, the legislation will be incompatible, and a declaration of incompatibility should be made, and the public authority will be immune from liability. It was surely not the intention of the HRA itself that virtually every operative provision in every law would be interpreted to within an inch of its logical meaning in order to be rendered compatible with the ECHR:
The Court must not cross the boundary from interpretation into legislation. All these familiar concepts and phrases are to be found in the well-known cases on section 3 but their importance has hitherto not perhaps been fully recognised in the context also of section 6(2)(b). 
If the courts feel it is their job under the Human Rights Act to bend the language of Acts of Parliament rather than carefully scrutinising the legislative intention at the time of enactment, there can be no certainty in any law – since it may be that at the time of drafting, a particular provision may be in accordance with Convention rights as they then stand. Years later, with the UK legislation still in force, the Strasbourg Court takes a different view of this or that right and its fit with national legislation – and suddenly it becomes incompatible. What happens then, apparently, is that an entirely new interpretation of the offending provision has to be spatchcocked on to it. The result of this approach by the UK courts has been said by a leading critic to lead to the unnecessary importation of
a raft of new human rights – invented in Strasbourg – thereby circumventing the proper role of our democratically elected Parliament in making new law (Dominic Raab, The Assault on Liberty, Fourth Estate 2009)
It is easy to forget that it is not the court’s primary task to enforce the Convention. Their job is to enforce the law as made by parliament, and therefore it is Parliamentary intention that they should be looking to, not whatever may happen to strike them as a good “fit” with the latest Strasbourg opinion on the point. This is to state a truism and indeed none of the judges in this or any other analogous case pretend to be doing anything other than proceeding from premises that are explicit or clearly implicit in the legislation itself.
It’s just a matter of whose version is the more intelligible, in the end.
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