Grand Committee
Arrangement of Business
The Deputy Chairman of Committees (Lord Haskel) (Lab)
My Lords, the hybrid Grand Committee will now begin. Some Members are here in person, others are participating remotely, but all Members will be treated equally. I ask Members in the Room to respect social distancing. If the capacity of the Committee Room is exceeded or other safety requirements are breached, I will immediately adjourn the Committee. If there is a Division in the House, the Committee will adjourn for five minutes. The time limit for the following debate is one hour.
Whiplash Injury Regulations 2021
(3 years ago)
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Lord Wolfson of Tredegar
That the Grand Committee do consider the Whiplash Injury Regulations 2021.
Relevant document: 49th Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument).
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, I beg to move that the Grand Committee do consider the Whiplash Injury Regulations 2021 and the Civil Liability Act 2018 (Financial Conduct Authority) (Whiplash) Regulations 2021.
These draft statutory instruments are key components of the Government’s whiplash reforms. They will simplify the process of settling whiplash claims, provide certainty to claimants as to how much their claim is worth, and benefit society by enabling an average reduction in insurance premiums for ordinary motorists of around £35 per premium. I remind the Grand Committee that the Secondary Legislation Scrutiny Committee has drawn both of these important SIs to the attention of the House.
The House had a number of extensive debates on the merits of the Government’s policy underpinning these SIs during the passage of the Civil Liability Act 2018—which I will refer to as “the Act”—so, with the limited time available to us today, my focus will be on the detail of these regulations rather than on rehearsing past policy debates.
The measures in Part 1 of the Act change the process for making whiplash claims by defining what constitutes a whiplash injury; introduce a fixed tariff of damages for pain, suffering and loss of amenity, or PSLA; provide for an uplift to be applied to the tariff amount in exceptional circumstances; and ban the practice of seeking or offering to settle a whiplash claim without first seeking appropriate medical evidence. In addition, we are increasing the small claims track limit in respect of road traffic accident-related personal injury claims from £1,000 to £5,000.
We had also previously committed to increasing the small claims limit for all other types of personal injury, including employers’ and public liability claims, to £2,000. However, the Lord Chancellor has confirmed today, through a Written Ministerial Statement, which I have repeated, that the Government have listened to the views of Members of this House and others, and have decided both to limit this increase to £1,500 and to defer its implementation until April 2022. I hope the Committee will agree that this is a sensible and pragmatic decision, which will give stakeholders additional time to prepare.
The Whiplash Injury Regulations set out a tariff for the amount of damages payable for PSLA for a whiplash injury or injuries of up to two years and any minor psychological injury suffered at the same time. They allow the court to apply an uplift of up to 20% to the tariff amount in exceptional circumstances. Regarding the ban on pre-medical report offers to settle, they specify what constitutes appropriate medical evidence and the experts who may provide it. That will differ depending on whether the injuries include a non-whiplash element.
The purpose of the other statutory instrument is to give powers to the Financial Conduct Authority to enable it to monitor and enforce the ban on pre-medical offers to settle.
Let me now provide a little more detail on each regulation, starting with the tariff figures, which present a rising scale of fixed payments determined by injury duration, with damages reduced less at the top end to recognise more serious injuries. Where the prognosis exceeds two years—in serious cases, that is—claims fall outside the tariff.
We have reviewed and updated the previously published figures to account for inflation. We have also added a three-year future-proofing element to ensure that they do not move out of alignment with future inflationary pressures before the required statutory review in three years’ time. That leads to an increase of about 11% over the figures previously provided to the House.
The reason for the uplift of up to 20% in exceptional circumstances is to balance the need for an effective tariff while also providing for judicial discretion. That 20% figure takes into account feedback received during consultation and in earlier debates, and reflects the position in similar jurisdictions such as Italy, which allow for an uplift of up to one-fifth.
During the passage of the Act we introduced, on the advice of the House, amendments to ensure that the views of the Lord Chief Justice were sought, we have undertaken this consultation, and we are grateful for his consideration of these matters. He was clear that the tariff figures
“demonstrate a material divergence in the levels of damages between those proposed and those which are generally currently awarded”.
He also acknowledged that the tariff figures were similar to those previously tabled before Parliament, when the Government’s intent that the tariffs would be lower than the figures in the Judicial College Guidelines was made clear.
The Lord Chief Justice emphasised that the tariff was a
“narrowly defined statutory derogation from the principle of full compensation through an assessment of damages by the courts”,
but considered that it was not appropriate for him to suggest a change. He made it clear that he understood the Government’s principles underpinning the uplift, but expressed the view that he would prefer the judiciary to have greater discretion.
Following receipt of the Lord Chief Justice’s response, further discussions with the legal advisers to the Joint Committee on Statutory Instruments led to a need to amend the tariff figures to distinguish between damages for claims for whiplash injuries alone and damages for claims for whiplash injuries and minor psychological injuries. We made the Lord Chief Justice aware of these re-presented figures and he was clear that his response, in substance, remained the same.
The Lord Chief Justice also considered that it would be beneficial to review the tariffs earlier than the statutory three years. We do not know now whether we will have enough data in a year’s time to make an informed assessment, so I cannot commit to an early review, but we are open to the possibility. We must first make sure there is evidence available to undertake a meaningful review from which effective conclusions can be drawn. Having considered the points made by the Lord Chief Justice, we will not change our position on the tariff amounts or the judicial uplift of 20%, but we will undertake an analysis of the available data after a year with a view to considering whether an early review is appropriate.
Turning to the medical evidence, the regulations provide that in cases where a claimant lives, or is examined, in England or Wales they must obtain a fixed-cost medical report from an accredited medical expert selected via the MedCo portal. If there are other more serious injuries, the expert has to be listed on the General Medical Council’s specialist register.
The other regulations, which relate to the Financial Conduct Authority, give powers to the FCA to enable it to take effective action to monitor and enforce compliance with the ban on seeking or making pre-medical offers to settle. The FCA is the regulator for insurers and claims management companies which may be involved in settling whiplash claims. These regulations therefore ensure that the FCA has the powers it needs to regulate Section 6 of the Act.
I emphasise that the measures in these regulations are necessary and important. They will provide certainty to whiplash claimants, create savings which will be passed on to consumers and enable the FCA effectively to regulate the ban on the offering and seeking of offers to settle whiplash and associated claims without appropriate medical evidence. I hope that on this basis the Committee will be able to support these measures. I therefore commend them to the Committee.
The Deputy Chairman of Committees (Lord Haskel) (Lab)
The next speaker, the noble Baroness, Lady Primarolo, has withdrawn so I call the noble Lord, Lord Hunt.
Lord Hunt of Wirral (Con)
My Lords, I first declare my interests as a partner in the global law firm DAC Beachcroft, and as set out in the register. I support these regulations. The structure of a modest tariff for a modest injury is exactly what was anticipated when what is now the Civil Liability Act was debated in Parliament in 2018. I therefore agree with my noble friend the Minister that the tariff is set at the right level to reflect what these cases are really worth.
The Judicial College Guidelines do not tell us what hundreds of thousands of simple, low-value claims settle for outside court. The JCG also do not exercise any form of control. They simply record what other judges previously thought over the years and uprate for inflation. The number can go up but never slip back, as the guidelines themselves admit.
I will raise just one further point with the Minister, which I made to his predecessor during the passage of the Bill, about other minor injuries outside the tariff. The value of these other minor injuries is not the subject of any tariff so can he provide an assurance that, where they fall to be assessed alongside the tariff, their value will not suddenly become disproportionate to the main whiplash injury?
Lord Etherton (CB) [V]
The digital portal for whiplash claims will be a completely new portal for small personal injury claims arising from traffic accidents where the pain, suffering and loss of amenity element is under £5,000 and all elements of the claim are less than £10,000. It is specifically designed to enable potential claimants to state their claim and avoid court proceedings without the assistance of legal advice, the idea being that the litigant will simply follow the instructions on the screen. It is likely that very large numbers of claims, running into hundreds of thousands, will be processed through the new whiplash portal.
As the Minister said, the 2018 Act provides for the tariff of damages to be reviewed every three years. He indicated that now, after a year, consideration will be given to whether there should be a review more often than every three years. My focus today is not on that review but rather on the absence of any provision for collecting data on the operation of the digital technology so far as the claimant is concerned and a review of how well it is working.
The whiplash portal and protocol are not part of the court’s digitisation reform programme but arise out of a government policy initiative. I nevertheless urge the Government, as with court digitisation reforms such as the online civil money claims digital process for small money claims by litigants in person, to provide for litigants to record their satisfaction or otherwise with the procedural technology. This is particularly important in the case of the whiplash portal, not only because the litigant is expected to be able to navigate the new digital technology without legal advice but because the technology has been developed not by HMCTS or the MoJ but by the Motor Insurers’ Bureau.
I would, for the same reason, urge the Government to carry out a review of the operation of the new portal within nine months of its commencement, informed by the views expressed by the users of the portal.
Lord Bourne of Aberystwyth (Con) [V]
My Lords, I declare my interests as set out in the register. It is a great pleasure to follow the noble and learned Lord, Lord Etherton, and I thank my noble friend Lord Wolfson of Tredegar for setting out the purpose of these regulations so clearly. Indeed, the Minister wrote to noble Lords in February of this year setting out the plans for whiplash reform. I strongly welcome the reform and these regulations.
I recognise, of course, that there are genuine whiplash claims, but it is known that there are many “creative” claims. The regulations will help deter them and, it is estimated, will result in savings of approximately £1.2 billion, and of £35 on average on motor insurance premiums, which insurers will pass on.
The provision of a tariff for damages payable for pain and suffering and loss of amenity is welcome. It is obviously central to require a minimum of medical evidence and a ban on settlement without medical evidence, and this is indeed provided for in the regulations. It also seems sensible to provide for a discretionary uplift of up to 20% for appropriate exceptional circumstances. The small claims track limit being raised from £1,000 to £5,000 is also very sensible.
The Association of British Insurers has mentioned that the reforms are very welcome, but it cautions that the potential for claimants to focus increasingly on additional minor injuries, as my noble friend Lord Hunt pointed out, may result in higher awards than the tariffs for whiplash. I hope that my noble friend will be able to say something about keeping ahead of the fray on these developments, which could dilute the beneficial effects of these very welcome reforms.
Lord Hope of Craighead (CB) [V]
My Lords, I spoke in favour of what is now Section 3 of the Civil Liability Act 2018 when it was before the House three years ago—and I have not changed my mind. It seemed to me that the case for the whiplash injury regulations that we now have was compelling. It was far too easy for claims to be made that would not survive scrutiny if they were to be adjudicated on by a court. They would be accepted by insurers because it was so much cheaper for them simply to pay up. Human nature being what it is, not everyone abides by the rules. There was an abuse here that needed to be dealt with. A decision to proceed in this way was taken then, and what we are concerned with now is the content of these regulations.
There is no getting away from the fact that the figures listed in each of the columns in Regulation 2 are quite modest. Indeed, some people have described them as “derisory”. We have them, however, in the columns before us, and I welcome very much the Minister’s assurance that he accepts the Lord Chief Justice’s recommendation that a review in the light of experience be undertaken in relatively early course, after one year’s experience.
We note, of course, the opportunity for the court to increase the amounts payable by up to 20% in exceptional cases, and we should also note that Section 3(8) of the Act rightly provides that nothing in that section prevents a court awarding an appropriate amount for any other injuries the person may have sustained, which may well be the case in the ordinary road accident section. There is a risk, of course, that other kinds of minor injury will now take the place of whiplash claims. That will need to be carefully watched. For now, however, modest though the figures are, these regulations have my support.
Baroness Gardner of Parkes (Con) [V]
My Lords, I welcome the introduction of the whiplash injury regulations, given the sheer volume of whiplash claims that were being made to exploit the system, rather than to support those who suffered genuine injury. I do hope that, rather than just being absorbed by the insurance industry, any savings will be passed back to insurance policyholders as a reduction in policy premiums, as they have been paying for many of these unscrupulous claims with increased policy premiums for decades.
My concern with the introduction of the official injury claims portal—a move to an online service that is very much the norm these days—is whether this will disfranchise many in society who would otherwise be eligible to make a successful claim. Can the Minister comment on how those who do not have online access or IT skills, as is still all too often the case for much of society, are to make their claims? Is there an alternative, paper version? In addition, can he outline to the House how these changes to claims are going to be advertised or otherwise communicated, together with any paper version availability?
Baroness Ritchie of Downpatrick (Non-Afl) [V]
My Lords, I welcome the reform of whiplash injuries compensation because, in many instances, the accumulated payments for whiplash injuries—which in many instances are very painful and have to be endured for a long time—have imposed a considerable level of premiums on ordinary insurance people.
These regulations are supported by the insurance industry, which has long campaigned on the need to tackle the UK’s whiplash epidemic and has provided funding for the full technical development and build of the new portal through the motor insurers’ premium. However, solicitors’ associations have a lukewarm attitude towards the new regulations, contending that the methodology used for formulating the new tariff rates is fundamentally flawed and leads to a substantially greater reduction in damages payable to injured claimants than is justified. They also believe that the proposed tariff of damages is unfairly low, given the possible severity and duration of the injury sustained.
Therefore, will the Minister and his colleagues consider publishing the correspondence and exchange of views with the judiciary, in the interests of transparency? There is a view that not all the information from the judiciary has been made available as part of the consultation process. Will he also indicate what steps will be taken to ensure that the tariff rates are increased to facilitate fairer damages to injured claimants? In this instance, I mean people who are deserving of this payment and have had to endure so much pain and suffering.
Lord Thomas of Cwmgiedd (CB) [V]
As I said three years ago in Committee, I broadly welcome the tariff-based system. But today, as then, I wish to raise points in relation to advice, the proper operation of the new system, and the adequacy of the tariff.
I spent 20 minutes this morning watching the video of how this system is to work for unrepresented defendants. It is not easy, and the experience elsewhere has shown that it is difficult to devise a system whereby people can make claims online on something that is not very straightforward. I therefore wish to ask the Minister: what provision is being made to help unrepresented defendants understand the system, particularly those who are not as familiar with computers as Members of your Lordships’ House? Secondly, what advice will be given when a person has to decide whether the offer made by the insurers is a fair one? That is not an easy question. Will it be the CAB or some other third-sector provider, and what funds are being provided to cover this additional cost of the third sector, bearing in mind the immense pressure on it?
It appears that, unusually, the system that has been made has been designed, as the noble and learned Lord, Lord Etherton, stated, by the potential defendants. It is clear that an independent review of the operation of the system itself, as distinct from the tariff, is needed, and I very much hope that a properly independent review can be set up within a year. There should be no difficulty with needing the requisite figures; we just want to know how this is dealing with unrepresented defendants. As to the review of the tariff, I hear what the Minister has said, but I very much hope that, whatever the timescale for the review, it will be independent and the evidence will be published.
Lord Naseby (Con) [V]
My Lords, I support these regulations. The objectives are good and clear, although on reflection, perhaps it is a pity it has taken so long—four years—for action. It is good to see Her Majesty’s Government working closely with the ABI, and it in turn with its members, and it is good to hear that everyone is organised for when the portal goes live on 31 May. I like the linkage between the Treasury, the FCA and the industry to assess whether policyholders have benefited from any savings made by insurers as a result of the Act.
However, I am deeply concerned about minor injuries claims. There is the potential here for a huge challenge of quasi-bogus claims from claims management companies and claimant lawyers. I say that because we already have evidence from earlier debates about what is happening in relation to credit lending, particularly payday lending and the backlash against the home-collected-credit format that has been with us for well over 100 years. These claims management companies manufacture complaints and use social media marketing techniques to farm spurious claims in large—in fact, huge—volumes. They end up at the Financial Ombudsman Service, which finds itself facing this mass dumping of claims and has to produce what it calls “mass settlements”, which are then passed on in the cases that we have been debating elsewhere to the actual companies that are doing the lending. In this case, they will be dumped on the insurance companies. Can my noble friend therefore make sure that he is fully briefed on what has been happening in what is in effect an allied industry?
Lord Bhatia (Non-Afl) [V]
My Lords, this SI has been prepared by the Treasury. The Civil Liability Act 2018 gave powers to the Financial Conduct Authority to enforce the ban on the making and requesting of offers to settle road traffic accident whiplash-related injury claims without a medical report, as set out in Sections 6 and 8 of the 2018 Act. The SI applies to England and Wales only and is a financial instrument for the purposes of Standing Orders of the House of Commons relating to public business.
As set out in Section 6 of the Act, all low-value RTA whiplash-related claims will need to be supported by a medical report provided by a MedCo-accredited medical expert, otherwise known as a ban on pre-medical offers. As the Explanatory Memorandum states:
“MedCo is a system for accrediting medical experts and for sourcing initial fixed cost soft tissue injury medical reports mandated by the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents.”
The requirement to make sure that a medical report is completed before any RTA whiplash-related claim can be settled will provide more certainty regarding the costs of the settlement process and provide both parties with information on the severity of the injury and an accurate assessment of the treatment required and the duration of the injury, so as to be able to assess the position regarding the tariff and identify the compensation payable to settle the claim.
This SI will bring an end to the practice of pre-medical offers to settle, which can lead to unmeritorious minor or exaggerated claims being made by some claimants, including fraudulent claims by uninjured claimants. This will also reduce the risk of under-settlement, as the policy will ensure that claimants with genuine injuries are properly assessed by accredited medical experts—
Baroness Scott of Bybrook (Con)
My Lord, can I ask you to finish now, please?
Lord Bhatia (Non-Afl) [V]
—and receive compensation appropriate to the level of pain and suffering they have endured.
The Deputy Chairman of Committees (Lord Haskel) (Lab)
The noble Viscount, Lord Ridley, has withdrawn, so I call the noble Lord, Lord Bradshaw.
Lord Bradshaw (LD) [V]
My Lords, I spent 12 years of my life on a police authority, and I saw the manufacturing of totally spurious claims from a large number of ill-motivated people. Some of them were criminal claims: people had actually manufactured crashed cars and claimed that whiplash had taken place, and it was extremely difficult to deal with them.
What the Government are proposing is necessary, and it is a pity that it has taken so long to bring it into effect. However, I share the reservations expressed by the noble Lord, Lord Naseby, that there is a claims industry in this country which is determined to find some way in which to make money. The money is made out of honest people who pay the premiums, who pay extra as a result. I warmly support what the Government are doing but I ask the Minister, as has the noble Lord, Lord Naseby, to reassure us that the Government are alive to the fact that the people making these claims will move to other areas and will seek to exploit them. A responsible Government should be alive to this fact and should take steps as soon as possible to crush any resurgence of claims from any other quarter.
Lord Ponsonby of Shulbrede (Lab)
My Lords, tackling fraudulent whiplash claims to bring down motorists’ insurance premiums is a welcome step. However, these efforts must not be at the expense of access to justice for genuine claimants. On balance, we in the Labour Party support the intention of the regulations. However, we are concerned that they may lack clarity and there should be proper support for the inevitable rise of litigants in person.
We have heard something of the background to today’s regulations—the first proposal in the 2015 Autumn Statement and plans to introduce fixed tariffs for whiplash claims resulting from road traffic accidents. The Minister has explained that the regulations will increase the financial limit of claims managed though a small claim from £1,000 to £5,000 and introduce a new online portal managed by the Motor Insurers’ Bureau to process claims. The Minister also explained that they will set the maximum damages for whiplash claims, although a court may apply a discretionary 20% uplift in exceptional circumstances. Moreover, children and vulnerable road users such as pedestrians, cyclists and horse-riders are excluded from the new regulations.
The plans have been welcomed by the Association of British Insurers, as it is right that there should be an effort to reduce the cost of whiplash claims to insurers, which is currently about £2 billion. I must say that the contribution of the noble Lord, Lord Bradshaw, given his time on his local police authority, was apposite and went to the heart of the problem that the regulations seek to address.
Like all other noble Lords who have spoken in the debate, I have been contacted by several interested bodies. They have sent in a number of questions, some of which I will run through. I am sure the Minister will be aware of their concerns, but I raise them nevertheless. For example, how will mixed claims, whereby whiplash has been sustained along with other injuries, be dealt with? Secondly, under exactly what circumstances may a judge apply the discretionary 20% uplift?
The noble and learned Lords, Lord Etherton and Lord Thomas, made a point about the new portal. First, we trust that the data can be securely transferred to the new portal, but will there be a proper analysis of the data within it so that a review of the new system can be undertaken from an informed point of view? A further question is how the Government propose to address inconsistency in the application of the regulations.
My final point has been made by pretty much all noble Lords speaking in today’s debate. The Association of British Insurers has raised the concern that there may be an incentive for some people to claim for minor injuries and put them at a higher importance than whiplash injuries. That could limit the effects of the reform and lessen the benefits to honest premium-paying customers through the increase in minor injury claims.
In his introduction, the Minister that said he was open to the possibility of a review. When does he think it would be appropriate to review the new regulations?
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful to all noble Lords who have taken part in the debate. Given the time constraints, rather than give a speech in response, I will try to deal with the various points put to me.
My noble friends Lord Hunt of Wirral, Lord Bourne of Aberystwyth and Lord Naseby made the point that there is a risk that the regulations could be subverted by other injuries suddenly becoming the main injury. As the noble and learned Lord, Lord Hope of Craighead, mentioned, Section 3(8) of the Act provides that, where a claimant suffers injuries in addition to a whiplash injury, the court is not prevented from awarding damages that reflect the combined effect of the injuries sustained. The courts will therefore need to determine how mixed injuries are addressed. We are confident that judicial expertise will address these matters on a case-by-case basis, but we will look vigilantly to ensure that the regulations are not undermined, whether by the claims management industry or otherwise, by people reordering their claims so that minor injuries become the main part of their claim.
The noble and learned Lord, Lord Etherton, asked about legal advice. The short point is that the online system has been designed with the claimant firmly at its heart. It is a modern, user-friendly, digital system. There is guidance in the system and digitally disadvantaged claimants who cannot use it can be assisted by a dedicated telephone support centre. We will review the data produced by the system and monitor it. We will discuss the operational performance of the portal on a regular basis with a user group that includes representatives of claimants and defendants, together with third-sector and consumer representatives.
My noble friend Lady Gardner of Parkes asked about passing on savings. The short point there is that the competitive nature of the motor insurance market will ensure that savings are passed on. As she is aware, the regulations provide that insurers have to provide data to the FCA so that it can see the savings being made. I do not want to repeat what I just said, but I assure her that we are very conscious of people who are not online and we want to make sure that they are not disfranchised.
The noble Baroness, Lady Ritchie of Downpatrick, asked about correspondence with the Lord Chief Justice. I hope I gave the Committee a fair summary of that correspondence. We do not plan formally to publish the letters received from the Lord Chief Justice. I venture to suggest that it would not be appropriate to commit to publishing the full correspondence without discussing it with the Lord Chief Justice. It is also important that these discussions can take place on a proper basis.
As to a review of the tariff system, I hope I set out in introducing the regulations that we will consider a review on the timescale that I indicated. I appreciate that the noble Baroness said that some solicitors think that the tariffs are too low. I am afraid that is a debate that we have had on a policy basis on a number of occasions and, for the reasons I set out, the Government are confident that these tariffs are appropriate and give proper compensation where injuries are properly sustained.
I hope that I have dealt with the point made by my noble friend Lord Bourne of Aberystwyth. I have already referred to the contribution from the noble and learned Lord, Lord Hope of Craighead. I very much welcome his support on this matter.
The noble Lord, Lord Bhatia, asked about medical reports. I assure the Committee that the online system is fully integrated with MedCo, so that once a liability decision has been received by the at-fault insurer, claimants can proceed through the system to obtain their report from an accredited medical expert. Importantly, if the at-fault insurer has accepted any portion of liability, it will also pay for that report. We have worked very closely with MedCo to ensure that reports are presented in an accessible, user-friendly format, while continuing to include all necessary information on the claimant’s injury and prognosis. As I said, we will ensure that unrepresented claimants are fully supported through the process.
The noble and learned Lord, Lord Thomas of Cwmgiedd, asked a number of questions, first about the online system. The noble and learned Lord referred in particular to unrepresented defendants; I do not know whether he actually meant unrepresented claimants, whom I have already dealt with. So far as defendants are concerned, I assure the Committee that a full programme of webinars has been undertaken where professional users can learn more about the new process and ask questions. Information has been regularly disseminated through an e-shot programme and through social media channels such as LinkedIn and YouTube, and additional information pages will shortly be available on GOV.UK. Third-sector organisations have been taught about the new online service and, therefore, they will be able to signpost people to it. I am confident that, once the system is up and running, it will run well. I hope I have also dealt with the noble and learned Lord’s points about the tariff and a review of the system; I have sought to make the government position clear on that, and also on the data point. If I have misunderstood his focus, as to defendants or claimants, I will perhaps write to him to set out the position in more detail.
The noble Lord, Lord Bradshaw, regretted that it had taken so long. I am very conscious that this debate precedes my involvement in it by some years. All I can say is that we have got here, and the regulations will be up and running shortly—better late than never. The important thing now is to make sure that they work properly and fairly, and that is certainly what we will do. I am absolutely alive to the fact that there is a claims management industry, and that it will shift its focus. We will be equally vigilant to ensure that the purpose of these regulations is not undermined.
I therefore welcome—if I may say—the support in principle for the aims of the regulations from the noble Lord, Lord Ponsonby of Shulbrede. He asked me six questions in a rat-a-tat way. Let me give equally speedy responses, because I understand that we are all limited for time. First, I hope I have dealt with mixed claims; that is a Section 3(8) issue. On the 20% uplift, all I really want to say is that the word used in the statute is “exceptional”. I do not think it is appropriate for me to gloss that word, especially as we now have Pepper v Hart, so I will just say that it is an ordinary English word and falls to be interpreted in the normal way.
Thirdly, on the portal, I can assure the noble Lord that data is secure. I have already explained, I hope, the timing of the review. We will keep the question of its extent and timing under review, and we will look at it in a year’s time, as I said. I am afraid I did not quite understand the point about an inconsistency in application; I appreciate it was not the noble Lord’s point, but he was passing it on. The whole point here is that we have a tariff, so similar injuries really ought to be dealt with in a very similar way. If those who passed the question on to him are not satisfied with my answer, perhaps he will reformulate the question to me—and if he does, I am happy to provide a written response. But there should not be inconsistency, because we have a tariff. The fifth point was that there would be an incentive to claim that the minor injury is in fact the main one; I hope I have dealt with that already. The noble Lord’s last substantive question was on the review, and I hope I have dealt with that as well.
I apologise for running through this at something of a pace, but I have only 10 minutes, of which I have about 15 seconds left. I hope that I have dealt with all contributions. I will check the Official Report and write if I have not, but otherwise I respectfully commend these regulations to the Committee.
Civil Liability Act 2018 (Financial Conduct Authority) (Whiplash) Regulations 2021
(3 years ago)
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Lord Wolfson of Tredegar
That the Grand Committee do consider the Civil Liability Act 2018 (Financial Conduct Authority) (Whiplash) Regulations 2021.
Relevant document: 51st Report from the Secondary Legislation Scrutiny Committee
Forensic Science and the Criminal Justice System (S&T Committee Report)
(3 years ago)
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Lord Patel
That the Grand Committee takes note of the Report from the Science and Technology Committee Forensic science and the criminal justice system: a blueprint for change (3rd Report, Session 2017-19, HL Paper 333).
Lord Patel (CB) [V]
My Lords, it is a pleasure to move today’s debate on the Science and Technology Committee report, Forensic Science and the Criminal Justice System: A Blueprint for Change. The committee is indebted to all those who provided written and oral evidence. We held 21 oral evidence sessions, with 50 witnesses, and received 103 written submissions; I thank all who participated. I also thank the committee members, our committee clerk Donna Davidson—who, I am delighted to see, is the Table Clerk for today’s debate, and to whom goes the credit for a well-written report—our policy analyst Dr Daniel Rathbone, and our committee clerk Cerise Burnett-Stuart, who is, as always, an efficient organiser. We were also fortunate to have as our specialist adviser Professor Ruth Morgan, director of the UCL Centre for the Forensic Sciences, and professor of crime and forensic science. She is an internationally recognised expert in forensic science and its application in criminal justice systems. Her advice and knowledge contributed much to the report, and I thank her most sincerely. I am indebted to all those people.
I am also grateful, knowing her very busy schedule of legislation, to the Minister, the noble Baroness, Lady Williams of Trafford, for taking the debate today. She was kind enough to meet me and others to discuss the report following its publication. I shall say more about that later, and I thank her for listening.
Over the last 10 years there have been nine reports on forensic science and the criminal justice system, all intended to improve the service—yet adverse reports on virtually all aspects of the system continue to be made. Our report, based on the evidence we received, addresses the whole subject in a holistic way. A key aspect of it was the importance of addressing the whole forensic science system to identify the root causes of failures in the current system and to find best steps forward.
The delivery of justice depends on the integrity and accuracy of forensic science evidence and the trust that society has in it. The quality and delivery of forensic science in England and Wales is inadequate. We heard this repeatedly in our inquiry. In her 2019 annual report, the Forensic Science Regulator urged that the Government’s focus should be on
“the protection of justice rather than the protection of historic or current policies.”
One of the recurrent criticisms we heard was the lack of high-level leadership and oversight of forensic science from the Home Office and the Ministry of Justice. The strong evidence led us to recommend establishing a forensic science board, to deliver a new forensic science strategy and to take responsibility for it in England and Wales.
Budget cuts, reorganisations and exponential growth in the need for new services, such as digital evidence, have put forensic science providers under extreme pressures. The result is a forensic science market that is dysfunctional, and one which, if not properly regulated, will soon result in major forensic science providers going out of business, putting justice in jeopardy. The Government have an opportunity, following the recent much-welcomed legislation establishing the Office of the Forensic Science Regulator on a statutory basis, and with the pending appointment of a new regulator, to give the regulator resources and the function of regulating the market. I hope the Minister feels able to agree to this, but if she does not, can she say who should be responsible for regulating the market?
Structural and regulatory muddle continue to exacerbate the malaise, even now. There is no consistency in the way that the 43 police forces commission forensic services, with some doing so in-house and others contracting it out to unregulated private providers with no quality controls. Police forces also differ in which specialisms they outsource and which they keep in-house. This calls into question equitable access to evidence for defendants, and raises issues over the quality of the analysis undertaken and the evidence presented. It is urgent that the Forensic Science Regulator is given a number of statutory powers to bolster trust in the quality of forensic science provision. Will the Government use the opportunity provided by the appointment of a new regulator to give her or him these powers?
Fair access to justice for defendants is further hampered by cuts to legal aid. The defence needs to have an opportunity to commission its own forensic testing where the evidence is disputed. Further, the rapid growth of digital forensic evidence presents challenges to the criminal justice system. We were not presented with any evidence of any future strategy to deal with this. The Government have recently increased funding, but it still falls short of who will be responsible for developing a longer-term strategy.
Lack of resource and poor co-ordination of research and development in forensic science has resulted in concerns about the scientific validity of some of the forensic science evidence, particularly regarding its interpretation. It is vital that the failings identified by our report are recognised, otherwise public trust in forensic science will continue to be lost, threatening confidence in the justice system. Crimes may go unsolved, and it runs the risk of increasing the number of miscarriages of justice.
Our report was published on 1 May 2019 and the Government responded to it in July 2019. The Government’s response addressed only one part of the forensic science ecosystem, not the other key issues identified in the report. The proposals set out in the response are insufficient to address the systemic issues, and fall way short of addressing the core challenges or providing a path forward that will lead to reform across the whole of forensic science and enable the science to effectively assist the justice system.
Some things have changed since then, although not much for the better, and opportunities exist even now to address some of the failings identified in our report. Let me briefly say what has changed. One of the key pieces of good news, of course, is the establishment of the Office of the Forensic Science Regulator on a statutory basis. I thank the Minister for that. What the regulator lacks is the regulatory powers needed to drive the changes required to make the provision of forensic science in England and Wales world-class, as it once was.
There is also a need to address the level of resources required for the regulator to do his or her job. I hope the Minister can comment on that. Instead of the forensic science board recommended by the committee, the Criminal Justice Board has formed a forensic sub-group to address a forensic science reform programme to strengthen forensic science provision and address key risks and challenges. However, it is not clear how far it has progressed, what role the Government play in it and what responsibility they have for it. Despite further incidents such as a cyberattack on one of the providers of forensic services, the issue of fragility of the market is not being addressed.
The Government have put more money into the Transforming Forensics programme and launched its delivery arm, the Forensics Capability Network, but several police forces remain sceptical of its effectiveness, as evidenced by a request by the National Police Chiefs’ Council for a review. Accreditation, meeting quality standards and training still remain issues, as does inequality in the availability of forensic services to defendants, as opposed to the prosecution. As I said, cuts to legal aid threaten the financial viability of those who provide legal aid to the defence. To date, there have been some positive conversations on funding for forensic science research and development, but very little progress is being made.
Before I conclude, I have three further questions for the Minster. Where in the Government does accountability lie for provision of quality forensic services to assist the justice system? Who will be responsible for regulating the market in forensic services? How will the Government ensure that the UK remains at the forefront of research and development and forensic science methodologies, including digital forensics, foundation research and, importantly, the interpretation of forensic materials?
I end with a quotation from one of our witnesses, Professor Claude Roux, director of the Centre for Forensic Science at the University of Technology, Sydney, and president of the International Association of Forensic Scientists. Referring to all aspects of forensic services in England and Wales, he said:
“England and Wales held, essentially, the international benchmark. It was the ‘Mecca’ for forensic science … 30 years later”,
due to “an ongoing national crisis”, it
“is more of an example not to follow.”
That was not pleasant for the committee to hear. I beg to move and look forward to the Minister’s response.
The Deputy Chairman of Committees (Lord Haskel) (Lab)
My Lords, I remind the Committee that some Members are here in person, others are participating remotely but all Members will be treated equally. I ask Members in the Room to respect social distancing. If the capacity of the Committee Room is exceeded or other safety requirements are breached, I will immediately adjourn the Committee. If there is a Division in the House, the Committee will adjourn for five minutes.
Baroness Warwick of Undercliffe (Lab)
My Lords, it is an honour and a pleasure to follow the noble Lord, Lord Patel, and his comprehensive introduction to the debate. His speech got right to the heart of the dilemma the House faces in judging the adequacy of the Government’s response to the committee’s report and recommendations. After weighing all the evidence presented, the committee saw the need for systemic, root-and-branch reform across the whole of forensic science if it is to play an effective role in assisting the justice system. The Government have chosen not to take that strategic view. Rather, they have focused on just one element and only one part of the report: the creation of statutory powers for the regulator. Welcome though that is, unless there is an increase in the regulator’s scope and powers, and unless there is a body responsible for driving and implementing strategy, I fear little will really change.
I joined the Science and Technology Committee only this year, so was not involved in the production of this excellent and hard-hitting report, but I have read it and much of the evidence. Its findings shocked me profoundly. I suspect that other Members of this House may, like me, have gained awareness of the role of forensic science in the criminal justice system largely from the limited coverage in the news media. I understood the received wisdom to be that we had a world-class system, but whatever confidence that had given me in the competence of the service, its scientific base and the reliability of its judgments was shattered by this report.
The main conclusion of the Select Committee is that the quality and delivery of forensic science in England and Wales is inadequate. It highlighted an absence of high-level leadership, a lack of funding and an insufficient level of research and development, which had all been exacerbated by the coalition Government’s abolition of the government-owned Forensic Science Service in 2012. It further identified the need for the regulator’s powers to be expanded and made statutory, as the coalition Government had promised.
It was particularly concerning to note that although there have been no fewer than nine reports on the state of forensic science in England and Wales, all raising similar concerns to those raised in the Science and Technology Committee’s report, very little, if anything, has been done. As the report says, the delivery of justice depends on the integrity and accuracy of the evidence available. The inadequacies of the service are clearly endangering that integrity, as well as undermining public confidence.
In their July 2019 response to the report, the Government acknowledged the inadequacies of the system and seemed to be largely positive about, and apparently supportive of, the committee’s recommendations. So it was strange that the Government seemed reluctant to accept the structural changes proposed by the Select Committee, such as a forensic science board to oversee strategy and a national institute for forensic science to address the problems of under- resourcing in research and a lack of co-ordination.
The committee’s report is robust in its criticism of the lack of co-operation and co-ordination between the Home Office and the Ministry of Justice. The Government agreed that there needed to be a joint approach, and said:
“Following the appearance of ministers from the two Departments before their Lordships, there has been much closer cooperation.”
While this may be flattering to the immediate persuasiveness of your Lordships’ committee, there is nothing to guarantee that this new spirit of co-operation will be maintained. Indeed, the lack of any action in the last two years does not suggest much has changed. Can the Minister tell the Committee how she proposes to ensure that collaboration continues, and how she will evaluate its effectiveness?
Similarly, in rejecting the recommendation for a national institute for forensic science, the Government rely on the two ministries
“developing an even stronger working relationship with UKRI … to … set strategic priorities for forensic science research and development”.
I wonder whether the Minister agrees that this is rather a loose arrangement. It does not really seem any change from the current situation. In the last two years, some conversations have apparently been initiated with UKRI but there has been no formal recognition, so far, that forensic science requires dedicated funding, and no progress has been reported on the need for strategic oversight of research and development or identifying funding to enable it. Will the Minister acknowledge the very significant lack of funding—less than 0.1 % of UKRI spend over the last 10 years—and indicate how that will be resolved looking ahead?
I referred earlier to a change that the Government have agreed. In the last few months, they have been able at last to find parliamentary time for the Private Member’s Bill introduced in the Commons by the Labour MP Darren Jones, which we debated in this House last month and which had its Third Reading just last Thursday. It had full government support and in part addresses the recommendations in the Select Committee’s report in placing the regulator on a statutory footing and giving it powers to enforce a statutory code of practice. It is a great start but as the chair of the Select Committee said at Second Reading, while most welcome it was a missed opportunity to address the other issues identified by the committee and by the outgoing regulator, and highlighted today by the noble Lord, Lord Patel.
I hope that today’s debate will prompt the Minister to go further; the delivery of justice requires it and the confidence of the public must be won back. Will the Minister keep these matters under close and regular review so that further changes can be brought in as necessary? I hope she will agree that this is the only way in which to avoid yet a further future report that reiterates the concerns of the nine previous ones, as well as the 10th one that we are debating today from the Science and Technology Committee.
Baroness Walmsley (LD) [V]
My Lords, I was not a member of Science and Technology Committee when this report was written, although I am now. I am really sorry I missed it, because it was clearly a fascinating and important investigation. However, I have read the report, which was up to the committee’s usual high standard of rigour and integrity, and the main impression I gained was that the forensic service in this country has become a shambles and, regrettably, has fallen a long way from its former high standard. The noble Lord, Lord Patel, called it, more politely, inadequate and dysfunctional. This is bad in itself, but it is a particular disaster given the fact that the science is moving so rapidly in new directions and the demand for the service is growing exponentially, particularly in relation to digital evidence.
High-quality forensic science is crucial for the operation of justice. It is important to the accused, both guilty and innocent; it is important to victims, both existing and potentially in future; it is important to the police, judges and advocates to enable them to do their job properly; it is important to juries who need confidence in the quality of the forensic evidence to allow them to be as sure as possible about their decisions; and it is important to the public on whose behalf the criminal justice system works. But it is clear that, for whatever reason, not usually the fault of those who work in the service, the service has let us all down over recent years and lost its former high reputation. The committee has done an excellent job in its report of getting to the bottom of what has gone wrong and proposing a comprehensive plan of what needs to be done to put it right.
Four aspects jumped out at me as I read the report. First, on leadership and resources, the committee led with this issue in its very first recommendation. I absolutely agree that the service needs strong leadership at arm’s length from government. The committee recommended a forensic science board to take the lead in strategy, organisation and regulation. The Government instead proposed a less independent alternative—a steering group of the Criminal Justice Board jointly chaired by the Home Office and Ministry of Justice. That is hardly arm’s length. Where is it? Does it exist? What has it done since the report in spring 2019? Do we have to wait another two years for action? Yes, we now have a statutory regulator, thanks to a Private Member’s Bill, but this is no use without adequate powers and resources.
The committee listed five powers in its recommendation 12, all of them needed to enable the regulator to ensure the quality of provider organisations and individuals, and the ability to force them to improve or remove them from the service as necessary. It is outrageous that some providers are currently unregulated and some so-called expert witnesses not adequately qualified. The Government did not agree with these recommendations, but I believe that a regulator needs teeth, otherwise how can he or she do the job? It is nearly 10 years since the Government promised that the regulator would have such statutory powers, a time lapse which the committee described as embarrassing. Can the Minister assure us that the Government will take appropriate action so that it is no longer embarrassed?
On resources, following the disastrous cuts to legal aid, the committee heard that the defence sometimes lacks the ability to commission its own forensic testing where the evidence is disputed and, on the prosecution side, the police need adequate resources to build their case. Some police forces use their own labs, some put the work out to private providers and some a mixture of the two. But if you are going to put a public service out to the market, you have to show private providers that there is a stable business there in which they should invest. As the committee’s evidence shows, the market is fragile and some providers may close down. The Government’s response is to reform procurement policy. This sounds to me like saying, “If we don’t like the price of butter, we can go to a different supermarket.” Can the Minister tell us what it actually means apart from an attempt to get more for less?
Secondly, it is currently unclear where accountability lies in government. I echo the question from the noble Lord, Lord Patel: can the Minister say clearly where accountability lies now? Is it with the steering group or whichever department happens to be in the chair at the time? There is also a lack of co-ordination. The committee proposed that the new FSB should work with the regulator and the proposed national institute for forensic science to ensure standards, strategy and co-ordination. Can the Minister say how the Government’s alternative structure will do that?
Thirdly, on research and forward planning, it is vital that there is a mechanism to look ahead and plan for investment in research into new forensic methods and, where appropriate, the use of artificial intelligence and automation and the practicality of how these can be integrated into the service. In the past, the development of and confidence in DNA evidence has allowed former miscarriages of justice to be corrected and unsolved crimes to be laid at the doors of the perpetrators at last. If resources are not put into the development of new forensic science, there will be more miscarriages of justice and unnecessarily unsolved crimes. Victims are always the ones to suffer for this but so does the whole of society. This is where the committee’s recommendation 21 of a national institute for forensic science within UKRI comes into the picture. Without such an expert group to do the horizon-scanning and ensure the funding for the correct areas of research, the rogues will always be way ahead of the forces for good.
That brings me to staffing. The service does not just rely on new methods but on high-quality staff. Where are the planning and resources for staff training? Recommendation 13 and others cover this. The proposed forensic science board would have the responsibility, together with the College of Policing and the Chartered Society of Forensic Sciences, to develop a strategy for the ongoing training of all forensic science practitioners, including those who provide expert evidence in court, as well as providing CPD on forensic science for practising lawyers. Given the rise in digital crime, it is essential that more staff qualified in this area are recruited. What system do the Government propose for the staff planning and training function, and why is it better than the committee’s recommendations?
Finally, on confidence, the noble Lord, Lord Patel, has outlined the delay and inadequacy of the government response. It makes me wonder whether this indicates a lack of interest on behalf of the Government or perhaps a lack of understanding of the role forensic science plays in building the confidence of the public in our criminal justice system. Does the Minister agree that a high reputation for forensic science can have a beneficial effect on the willingness of the public to co-operate with the police? It can also affect the prevalence of crime, deterring potential criminals as well as catching them. Police chiefs, in their evidence to the Committee, did not show that they have confidence in the Government’s response to the report. If they do not have confidence in the system, who can?
The Earl of Lindsay (Con) [V]
My Lords, I am very grateful to the noble Lord, Lord Patel, for introducing the report from the Science and Technology Committee on Forensic Science and the Criminal Justice System. This is an important report, which has not only shone a light on to some of the current failings and inadequacies of the use of forensic science within the criminal justice system but also makes important and much-needed recommendations for change and improvement. These recommendations are to be welcomed, and I very much hope that they will be carefully considered by all those working across this complex and multifaceted discipline. I recognise that some of the actions have been progressed since the publication of the report nearly two years ago, but it is particularly encouraging to note the successful progress of the Forensic Science Regulator Bill through both Houses, with just Royal Assent now awaited.
When enacted, the Forensic Science Regulator—the FSR—will gain long-overdue statutory powers. At this point, I declare an interest as the chair of the UK’s national accreditation body, UKAS. UKAS is the sole national body recognised by government for the accreditation of organisations against nationally and internationally agreed standards. It is in this capacity that I especially note the committee’s conclusions on the clear benefit of ensuring that the majority of forensic science providers are accredited to the appropriate international standards. Accreditation delivers assurance of the impartiality and competence of providers, which, I am sure we would all agree, is imperative within the criminal justice system.
I also welcome the recommendation that UKAS and the FSR work closely together to ensure that accreditation to relevant ISO standards is accessible and is progressed to ensure that the objectives of the FSR are realised. In fact, UKAS and the FSR have worked closely since the FSR role was first created. Together we have achieved consistent success in improving standards through the accreditation of forensic science providers in both the private sector and police forces, in line with the expectations of the FSR codes of practice and conduct.
As the FSR powers evolve, UKAS will continue to collaborate closely to deliver the vision of the FSR, focusing on clients with the required standards and, through the accreditation of forensic science providers, the demonstration of the appropriate competence of practitioners undertaking this critical work. In addition, UKAS and the FSR are able to share information through appropriate agreements, helping to support each other in their respective roles. The need for high-quality and reliable forensic services with sufficient capacity and capability to deliver the services required is a given. They are critical for a fair and functioning criminal justice system.
I therefore welcome and support the report’s conclusions calling for the delivery of strategic and accountable leadership, reflecting all the main stakeholders, to set the vision, strategy and agenda for forensic science. This leadership, vision, strategy and agenda are needed now more than ever as the shape of forensic science evolves to accommodate new technologies and changes in the types of crime and evidence needing to be examined. The recommendation to focus on building capacity within the digital forensics market will likewise be imperative to keep pace with demand.
In conclusion, I thank the noble Lord, Lord Patel, and his committee for the expertise and foresight they have brought to this excellent report. I add my support to their conclusions and recommendations.
Lord Mair (CB) [V]
My Lords, it was a privilege to have been a member of this House’s Science and Technology Select Committee under the expert and excellent chairmanship of the noble Lord, Lord Patel. I congratulate him on his wise leadership.
Our report, published in May 2019, highlighted that this country was once regarded as world-leading in forensic science and seen as the international benchmark. But, regrettably, this is no longer the case—we are lagging behind other countries. This is principally because of an absence of high-level leadership, a lack of funding and an insufficient level of research and development. Our inquiry repeatedly heard that the forensic science system in England and Wales is not operating as it should; it is inadequate and in a state of crisis. We heard consistent evidence of the decline in forensic science, especially since the abolition of the highly respected Forensic Science Service in 2012.
The noble Lord, Lord Patel, outlined some of the principal recommendations of our report. One was the creation of a forensics science board to take responsibility for forensic science in England and Wales. Another was the creation of a national institute for forensic science to set strategic priorities for forensic science research and development, and to co-ordinate and direct research and funding. The Government decided not to implement either of these key recommendations, as noted by the noble Baroness, Lady Warwick. I will focus on two important areas affected by this decision: the market for provision of forensic services; and the research and development requirements, especially relating to digital forensic evidence.
On the market for provision of forensic services, the noble Lord, Lord Patel, rightly emphasised the urgency of giving the Forensic Science Regulator a number of statutory powers. The proposed establishment of the Office of the Forensic Science Regulator on a statutory basis is much welcomed. The noble Lord drew attention to our inquiry hearing evidence of a dysfunctional forensic science market. Our committee recommended that these statutory powers should include the means of regulating the market.
The effectiveness of forensic science for the criminal justice system depends critically on who provides it and how accessible it is. It must be good enough to be relied on by the courts, and it must be equally accessible to both the prosecution and the defence. Since the closure of the Government’s Forensic Science Service in 2012, some types of forensic science analysis are increasingly undertaken by police forces in-house, particularly disciplines such as fingerprint analysis and digital forensics. Our inquiry heard that the forensic marketplace accounts for about 20% of service provision for law enforcement in forensic services by value, with the remaining 80% of forensic science work undertaken by in-house employees of police forces.
There has been a large reduction in spending on forensic science services. We heard that the £120 million spent on forensic science in 2008 was down to about £50 million in 2018. Significant reduction in spending on commercial providers of forensic science has contributed substantially to market fragility. We were told by a number of witnesses that the state of the forensic science market in England and Wales is unsustainable and in need of urgent reform. A number of private forensic science providers had gone into administration or been suspended, leading to significant fluctuations in the market and consequent problems for the criminal justice system. Dr Gillian Tully, until recently the Forensic Science Regulator, stated in her 2019 annual report that more needed to be done to stabilise the procurement and provision of forensic science services by police forces.
Procurement of forensic services from private providers is largely run by the 43 police forces and their police and crime commissioners in England and Wales. A distinctive feature of the forensic science market is that, in any given region, the police forces are essentially the sole customer. We heard evidence that commoditised procurement processes had led to a 30-40% erosion in pricing over six to seven years. Suppliers of forensic services were being forced to compete so heavily on price because the contracts were so big and came around so infrequently. The result was prices being reduced to unsustainably low levels. We all know the dangers of this: the level of scientific skills offered by private providers of forensic services is inevitably compromised if they are being driven down to very low prices.
In their response to our report, the Government acknowledged that there is a strong relationship between price and quality. The key question, therefore, is how to rectify the current situation. Our committee heard how, as an alternative procurement model, some police forces are now using a managed service model. In this model, for a fixed price a large provider contracts to provide police forces with all the forensic science services they need long term, for up to 10 years.
Although this provides long-term stability for a large provider, it leaves little opportunity for the smaller specialist providers, many of which are uniquely able to offer scientific analysis in important niche disciplines. Evidence we heard indicated that some important specialisms are dying out because they are no longer sustainable. This is worrying.
Our report concluded that the current procurement models for forensic science services will need to change substantially in order to stabilise the market. The evidence pointed to the need for a body to oversee the market and ensure continuity of high-quality service provision. Without this the criminal justice system will continue to be severely compromised.
Our committee recommended that the Forensic Science Regulator should urgently review the structure of the market for forensic science, and also review the procurement process for commissioning private sector providers alongside provision by police forces. The primary aim should be to determine a procurement model that balances price, quality and market sustainability. It is particularly important to ensure a level playing field between private and public sector providers of forensic science services, maintaining the capabilities of small providers in niche disciplines. Can the Minister give an assurance that the Forensic Science Regulator will be given the necessary statutory powers to achieve this, overseeing and regulating the market effectively, thus ensuring its stability and its quality?
The second and final area on which I shall comment is research and development, especially in relation to new technologies and the increasing importance of digital forensic evidence. Digital evidence is now a key component in many criminal trials. Digital forensic capabilities must therefore be available to both the prosecution and the defence. Our committee heard that around 80% of all crime cases have a digital element, whether it be CCTV, mobile phones and social media data, or cyberattacks. Interrogating and analysing digital evidence is becoming increasingly time consuming. The evidence was clear that very considerable investment was needed in the use of modern technology to handle, search and analyse digital content.
Digital forensics is a rapidly expanding field. Its increasing importance is clearly recognised in the comprehensive Digital Forensic Science Strategy published by the National Police Chiefs’ Council in 2020. The value of artificial intelligence and machine learning to the criminal justice system cannot be overestimated. A modern mobile phone could have 1 terabyte of data on it, equivalent to many thousands of documents. Artificial intelligence and machine learning have vital roles to play in facial and speech recognition, and in identifying patterns of behaviour. There are enormous opportunities to apply artificial intelligence and machine learning technologies to streamline the handling, searching and analysis of digital forensic evidence. However, there are complexities, because human biases might be replicated by machine learning systems. This requires more research, particularly in the context of evidence for criminal trials.
A further pressing complexity is the rapid rise of deepfake technology. It is now possible to create digitally altered videos or soundtracks that make someone appear to have done or said something that they have not done or said. Deepfake videos and soundtracks are becoming easier to make and are dangerously difficult to identify as fakes. We are entering a world where it is no longer possible to believe all digital information. It is these very complexities that point to the urgent need for research in digital forensics.
Our report recommended that UKRI, working with the Ministry of Justice and the Home Office, should urgently and substantially increase the amount of funding allocated to forensic science, for both technological advances and foundational research. We emphasised the need to focus on digital forensic science evidence and the opportunities for understanding and developing further capabilities in artificial intelligence and machine learning. Can the Minister confirm that the Government recognise this vital need and will act accordingly?
In summary, there can be no question that proper delivery of justice depends on the integrity and accuracy of forensic science evidence, and the trust that society has in it. There are urgent changes needed to the system of procuring forensic science services to address market fragility, ensure stability and maintain high quality. There is also a need for more funding to be allocated to research and development in forensic science, especially in the rapidly changing area of digital forensics.
My final point is—
The Deputy Chairman of Committees (Lord Palmer of Childs Hill) (LD)
I am sorry, I have to suspend the committee for five minutes for voting.
The Deputy Chairman of Committees (Lord Palmer of Childs Hill) (LD)
We resume proceedings, and I am delighted to ask the noble Lord, Lord Mair, if he would benefit us by repeating the last couple of sentences or so of his remarks. Is the noble Lord, Lord Mair, there?
Lord Mair (CB) [V]
I am indeed, thank you. I was just about to conclude. My final point is this: included in the title of our report were the words “a blueprint for change”. How much of the blueprint will really materialise? There are fears that only a few of our recommendations will be implemented. Substantial change is needed across the board if forensic science is to properly assist the criminal justice system. Full confidence in its provision needs to be restored.
Lord Winston (Lab) [V]
My Lords, the noble Lord, Lord Patel, is to be warmly thanked for chairing the Science and Technology Select Committee so ably and for finally getting this Motion tabled. I declare that I was not a member of the committee when it produced its report, but I am now.
Forensic science in criminal justice is an extremely important topic and the recommendations of the committee are of grave concern. In this respect, it is regrettable that it has taken two years to debate this report. I suppose that one can at least say that not much has changed. We pride ourselves as a civilised society, at the heart of which is a stable democracy and a justice system which has rightly been internationally respected as a model. But it is obvious that major deficiencies have left some cruel results and great distress—or even worse—for a number of people, often entirely innocent citizens. The delay in doing something more about this is an underlying problem and it reflects extremely badly, in my view, on the Government.
I am going to address some of the issues that the noble Lord, Lord Mair, has already addressed, so I will illustrate my remarks in a slightly different way. I declare an interest as a member of the Centre for Data Ethics and Innovation. Last week, the conviction of Josephine Hamilton and others was quashed on appeal. This litigation involved evidence depending on an antiquated computer system and out-of-date software. Earlier, Mr Justice Fraser, in his written judgment, which extended to 313 pages, quashed the conviction of 39 sub-postmasters on the grounds that the commercial IT system, which was sold by Horizon and Fujitsu, was unfit for purpose, in spite of the Post Office’s assertions to the contrary.
The software was based on a long-unsupported version of Windows NT4, first launched in 1996. In computer parlance that is not merely equivalent to the description of Chancery and Jarndyce in Bleak House by Dickens; it is closer to the Middle English of The Friars Tale by Geoffrey Chaucer. The software was, in spite of denial by the Post Office, subject to bugs, errors and defects. To compound the seriousness, Mr Justice Fraser pointed out:
“To see a concern expressed … that, if a software bug in Horizon were to become widely known about, it might have a potential impact upon ‘ongoing legal cases’ where the integrity of Horizon Data was a central issue is a very concerning entry to read in a contemporaneous document”—
and I agree; it shows one of the problems with these commercial interests.
There is another problem apart from the commercial interests. Most reasonably educated people think of forensic evidence with the precision and scientific certainty often given in the media—in “Line of Duty”, “Broadchurch”, “The Fall”, “True Detective”; even “The Night Of” and “Silent Witness”. This has encouraged many people, including jurors, to consider some evidence not as circumstantial but as certain. This is certainly true of much biological evidence—for example DNA, to which I will return in a moment—and even to the gait of a person, the shape of a skull, the cause of a fire or the use of a partial fingerprint. In a sense, the importance of data and its analysis, as the noble Lord, Lord Mair, said, has now become increasingly central to the criminal justice system.
The increasing difficulty raised by the analysis of extensive data in criminal justice is well illustrated in the case of the Crown v Michael Richards, Robert Gold, Rodney Whiston-Dew and others. This commercial fraud involved over £200 million and had been initiated some 10 years earlier. It involved setting up projects promoting sham attempts at carbon sequestration overseas, a complex network of many wealthy investors, tax relief claims, offshore banking and extensive fraud involving the Inland Revenue.
During an earlier appeal heard by Sir Vivian Ramsey in 2013, the prosecution was stayed on the grounds of an abuse of process—partly because the prosecution had failed to comply with the duty of disclosure. There was a major difficulty. It is unnecessary to go into detail here, but the investigation and subsequent prosecution had required the seizure of 7 terabytes of information, 85 digital instruments and additional non-digital material, which took some years to analyse. After the devices were returned to the respondents, HMRC kept digital information on file and the respondents were then in a position to recreate the nature of their involvement.
Eventually it became clear to HMRC that the proprietary software needed to analyse all the digital information it had taken was served by FTW version 1.7 and it did not permit full optical character recognition. There were in all some 312,500 files, which were reviewed by people scrolling through thumbnail images. Subsequently, the information was migrated to a later version of FTW, version 3.4. This was equally unsatisfactory, because it required a lengthy process and there were continuing software problems. These deficiencies included, for example, the misplacement of attachments to emails.
In a subsequent hearing in the Court of Appeal Criminal Division chaired by Sir Brian Leveson in 2015, the earlier ruling was overturned. In some 33 pages, a very clearly expressed judgment was made by three judges. The appeal by the prosecution was allowed and the earlier stay was lifted. The case finally went to trial two years later, more than 10 years after HMRC had started its investigation. The key defendants were given lengthy prison sentences. The trial before Mr Justice Edis with the presentation of those data took 10 months, and it is notable that early in the trial one juror found that she was pregnant. She was finally delivered of a baby girl, Evie, before the trial finished.
Now, how much did this process cost? How much of the defrauded money was recovered? Perhaps the Minister might inform the Committee after this debate or perhaps write to me separately. With the increase in litigation involving commercial crime, as the noble Lord, Lord Mair, said, and organised crime, such as trafficking or illegal use of the internet, serious investment in digital technology and constant refurbishment of hardware and software are crucial, and the need for effective machine learning and artificial intelligence, as he has maintained very clearly, is essential.
I am just a doctor; I am not a lawyer—as my imperfect description of that last case will confirm. But I did promise to return to biology and DNA before I conclude. The excellent report from the Select Committee has detailed the inadequate provision for properly set up forensic laboratories, the questionable qualifications and training of many technical staff, and the expense and problems arising when commercial companies tender for contracts with the police. One example of problems that may arise is well illustrated by the Randox débacle.
Randox Testing Services advertises on the web, as I checked this afternoon, for workplace testing, medical-legal testing and Covid-19 antibodies and PCR. I have not yet been able to find out how much it charges for this, but its website claims that it has undertaken 17% of the Government’s national Covid testing. Apparently, the police used to outsource most of their toxicology testing to it, and it is claimed that some dishonest employees in its laboratories fabricated evidence of alcohol usage and 10,500 cases, mainly involving drink-driving, are being reanalysed. The cost and delays involved in this are considerable, and this investigation is still going on two years later. Retesting is apparently taking a long time because, we are told, there is a chronic shortage of scientific expertise and accredited laboratories, leading to delays in providing toxicology analysis in unrelated cases of sexual offence and rape. This is just one example of the Select Committee’s concern about outsourced laboratory testing in inadequately supervised commercial laboratories.
I conclude on the subject of DNA. In 1988, my own lab was refining PCR, the polymerase chain reaction, then an entirely new process, to test human embryos for possible sex-linked diseases and for any one of a number of 6,000 genetic diseases that cause serious or usually fatal disease in children and young people. It required exquisite care in dealing with the DNA from just one or two human cells. Indeed, many colleagues told me that this would be quite impossible; it is now used worldwide. All DNA of that kind, whether medical or forensic, requires—[Inaudible]—months if not years in our methods and redesign of at least one laboratory.
The problem of contamination is serious; it is also true of advanced spectroscopy, for example, when one is looking at chemical analysis of toxicological samples. With DNA, a tiny tube about 1 centimetre high can be contaminated by somebody touching apparatus nearby or coughing 30 metres away from the tube. We do not know how long DNA—a stable molecule, apparently—will survive on a given surface or how long it may be contaminated on a swab. DNA analysis has now become sophisticated and automated, but mistakes are still possible, particularly in untrained hands and in inadequate laboratories. Even in well-equipped premises that can happen. Many years ago, in a totally different experiment, a colleague and I voluntarily withdrew a paper that had already been accepted by the international journal Nature because we felt unsure that we could replicate our results after lengthy storage of the DNA on which we had run gels.
It is clear from this report that forensic science, yet another area in which the UK has led, is in dire straits, due to underfunding, poor regulation, inadequate training, limited university courses, which are seen as a cash cow, and scanty meaningful research. There are too few properly qualified individuals and a very wide range of forensic specialities. This report is commendable because it clearly outlines many of the key issues. As Sir Brian Leveson, who gave evidence to this inquiry, pointed out, inadequate or flawed forensics seriously undermine the system of British justice and the trust of the public.
Lord Griffiths of Fforestfach (Con)
It is a great pleasure to have been a member of the Select Committee on Science and Technology at the time we undertook this investigation. In this context, I thank the noble Lord, Lord Patel, for his outstanding leadership. He was relentless and courageous in getting to the root of the problem. I hope that he feels as a result that we served him well. I also thank the excellent contribution that our special adviser, Professor Ruth Morgan, made, not just when we were meeting but with what she handed out as preparation for today’s debate.
At the outset, I make one point—namely, to draw attention to the seriousness of the issue we are debating. In the United Kingdom, we live in countries that uphold the rule of law and have a legal system that aspires to deliver justice. As we wrote in the report, the integrity and accuracy of evidence is critical to ensuring public trust in our system. If that trust ever drains away, the consequences for our society will be enormous. Therefore, it is very important to stress that securing justice is really at the core of what we are doing. It is not simply about the police having a very successful record of prosecutions, entrepreneurs believing that the private sector should be intimately involved in provision or the science community feeling that the development of science is critical. What really matters is the reliability and accuracy of forensic science in providing public confidence in our system.
In this context, I shall make three points. First, we made it very clear in our report that the fundamental weakness of the current system was at the highest level—namely, to do with the relations between the Home Secretary and the Secretary of State for Justice. We concluded that there was a lack of leadership providing a vision, strategy and agenda for the whole of the forensic science service. We said that we really need one umbrella that covers policing, the judiciary and the defence community. We heard again and again, as we have heard this afternoon, that the parent system is too fragmented, with parts entrenched in silos. As a result, the quality of forensic science is not at present fit for purpose nor up to our traditional reputation.
That recommendation, which is foundational to our report, was based on the evidence we received from Ministers, although they may not have been as blunt as I have been today, and from the Forensic Science Regulator. One week before our report was published, the Home Office published a review of forensic science, the primary focus of which was the management of the market, but in addition it said that it recognised a broader set of issues which would have a significant impact on shareholders’ confidence in the system. Then the Government, in their response to our report, mentioned that they had set up a steering committee, jointly chaired by the Home Office and the Ministry of Justice, but its primary focus was the operation of the market. More recently, as we heard from the noble Lord, Lord Patel, the Criminal Justice Board last year set up the forensic sub-group to oversee the issue.
In my judgment, all of that falls short of setting up what we were recommending—a forensic science board. I do not know why that is. It may be that the departments have other, more urgent matters of business, which I could understand, that they need more time, or that they face the challenge of persuading some of those who are in quite deep and well-protected silos of the need for change. Are the interests of the judicial system and the defence community, alongside the police, adequate to establish what we set out to achieve in this review?
A second issue I will draw attention to is the market for forensic services, which has been described today as dysfunctional and in evidence to us as unstable. This is not straightforward, but, if we look back, I believe that three trends have become apparent. One is that in-house provision by the police has kept increasing over the past 10 years, so that by now, 80% of forensic science is conducted in-house by employees of police forces, and only 20% by marketplace provision. This trend was commented on in the House of Commons report on the closure of the Forensic Science Service back in 2011, when the police had, at most, 40%. The Commons committee made a strong recommendation that it should be prevented from increasing. Clearly, since that time, it has gone on increasing.
The second trend is the charge of serious market fragility and instability. By this I think people mean that we have here a sector in which a small number of large firms are undercapitalised. Some have withdrawn or gone into administration. Little investment seems to have been made in innovation and there has been a loss of skills from the profession. When police forces join together, they act as a monopoly buyer—a monopsony—to drive down prices excessively, as the noble Lord, Lord Mair, mentioned. A commoditised model for procurement that places undue weighting on price and less on quality of service means that we are not getting the kind of value for money that we are looking for. Finally, long-term contracts covering large areas will squeeze out small providers.
The third trend, which has been noticeable over recent years, is the cut to budgets. If you want a vital private sector, there must be resources in it, and those who are purchasing have to put funds into it. However, what we see here is great uncertainty over the structure and the future of investment in this business, and the question I ask myself is: if I were a private investor—which I am not—in the area of science and biotechnology and so on and knew something about the business, would I put money into this? There is so much uncertainty at present surrounding this market.
Despite these criticisms, it is important to note that in the report we make it very clear that we did not hear convincing arguments in favour of resurrecting the Forensic Science Service, which was closed down in 2012 and was a completely state-owned, commercial organisation. What we did recommend—I am delighted that the Government have taken this on board—was an expanded role for the Forensic Science Regulator, especially in relation to the procurement process, to avoid the clustering of contracts and maintain the capabilities of small providers.
The question for the Minister is: does she not feel that, if we are to have a competitive market in which there is a stream of new ideas and innovation, the extent of in-house police provision needs to be not only halted but cut back in the way that the House of Commons Select Committee was recommending 10 years ago? I do not say this from an ideological perspective. If provision by the police is more effective, so be it—let us have it. But I have a nagging suspicion that this trend will not produce the innovation that a more open marketplace would provide.
My final, brief point is on the importance of the defence community, alongside policing and alongside the courts, and the need for symmetry in funding between prosecution and defence. This point was made powerfully by one witness, barrister Carl Harrison, who said that in his career he had been commissioned by the police as the prosecuting authority 160 times and by defence counsel only three times. He concluded that this reflected the level of funding available to challenge specialist forensic evidence. The point was also made powerfully in the six letters between the Ministry of Justice and the representatives of Keith Borer Consultants that were provided for us by Ruth Morgan in advance of this debate.
The increase in funding from £35 million to £51 million is certainly welcome but, if defence-focused organisations are to be able to recruit, train and retain high-calibre individuals, more funding will be needed, and this will be another important item on the agenda of a regulator with statutory powers.
Lord Krebs (CB) [V]
My Lords, although I was not a member of the Select Committee at the time of this inquiry, I now have the privilege of serving under the chairmanship of my noble friend Lord Patel, so I can say with confidence that he will have led it in a most effective and courteous way. I thank him for his superb introduction, and him and his fellow committee members for their excellent report.
I will talk about research and development in forensic science, a theme that has been touched on by other contributors, including the noble Baroness, Lady Walmsley, my noble friend Lord Mair and the noble Lord, Lord Winston. The committee’s report describes three important facets of the scientific basis of forensics: identifying the sources of a material or mark, for example a chemical trace; the activity levels of a material, for instance how long it might remain as a trace; and the biases in human judgment in interpreting the evidence. The report also highlights the increasing importance of digital forensics, as has already been referred to by my noble friend Lord Mair and the noble Lord, Lord Winston.
This country has a distinguished history in forensic science. This includes the development in the 1830s by James Marsh of the Marsh test for arsenic poisoning; the use of fingerprints, developed by Sir William Herschel and Francis Galton in the late 19th century; and, of course, the discovery of hypervariable mini-satellite sequences—DNA fingerprinting—by Sir Alec Jeffreys, that was first used to successfully solve a double murder case in 1986. We also pioneered forensic science in the world of fiction. Arguably the most famous fictional detective of all time, Sherlock Holmes, was a master of forensic science and wrote several monographs on the subject. Furthermore, he was ahead of his time. He used fingerprint evidence in The Sign of Four, which was written 11 years before this technique was finally adopted by Scotland Yard in 1901.
Moving back from fiction to fact, it may be helpful to anchor my comments on the need for more research on forensic science with a real example. The Royal Society and the Royal Society of Edinburgh have published an excellent set of primers on forensic science in practice, including one on forensic gait analysis, briefly alluded to by the noble Lord, Lord Winston. The question is: can you identify a person by the way they walk, for instance as captured on CCTV footage? Although forensic gait analysis is used in courts, the primer notes:
“The scientific evidence supporting forensic gait analysis, as currently practised, is … extremely limited.”
The report goes on to say that there is “no evidence” to show that gait is unique to an individual, no credible database for assessing the frequency of abnormal gait, no published estimates of the error rates in identifying individuals by gait, and no standardised methodologies for analysis and comparison of gaits. In one small published study of the accuracy of gait identification, the failure rate among experts was a staggering 29%. In short, if gait analysis is to continue to be used in courts, more research is urgently needed. That is just one illustrative example.
In this context it is particularly concerning to read the analysis published in 2019 by Professor Ruth Morgan of UCL, who, as the Grand Committee has heard, was the specialist adviser to the committee. She reported that during the 10 years to 2019, the research councils, now under the umbrella of UKRI, invested a paltry £5.6 million per year in forensic science, which she estimates to be about 0.1% of the total budget for the research councils over this period. Furthermore, it appears that this investment is declining, from a peak of £13.5 million in 2013 to only £1.1 million in 2018. As Professor Morgan points out, less than half this spend is on dedicated forensic science research, as opposed to other research that might have implications for forensic science. It is also focused on short-term challenges, rather than on research that would build the foundations for the next generation of new forensic techniques: so-called foundational research.
One may well ask whether £5.6 million a year is a big or a small sum of money, bearing in mind the breadth of themes that it covers, including digital and cyber science, analytical chemistry, molecular genetics, imaging, psychology, statistics and linguistics. Well, one way to consider whether £5.6 million a year is a small or big sum is to put it in the context of the overall cost of crime in this country, estimated by the Home Office to be in the region of £59 billion per year. Perhaps another illustration of the relative size of £5.6 million per year spent on research is to note that, according to a 2015 estimate, Transport for London spends roughly twice this amount each year dealing with graffiti. In short, £5.6 million seems a very small number.
This small and apparently declining investment in forensic science by UKRI must also be viewed in the context of the marketisation of forensic services, already referred to by my noble friends Lord Patel and Lord Mair, and by the noble Lord, Lord Griffiths of Fforestfach. According to Professor Morgan’s analysis, this marketisation has had a cascade of negative consequences for forensic research. It has resulted in restrictions on dissemination of new tools because companies view their discoveries as commercial and confidential, a dramatic decline in the size of the market, with a reduction of more than 60% in spend on forensic science services, and a lack of investment by the private sector in research.
It is against this background that the Select Committee made two recommendations relating to research and development. First, it recommended the creation of a national institute for forensic science within the UKRI family to set strategic priorities for forensic science research and development and to co-ordinate and direct research funding. In their reply, the Government said:
“We will carefully consider the business case for a National Institute”.
The noble Baroness, Lady Warwick, and my noble friend Lord Mair interpreted this as a polite form of rejection of the idea.
Secondly, the committee recommended:
“Current levels of investment in forensic science research are inadequate and do not appear to reflect value to the criminal justice system. We believe that the Home Office has abdicated its responsibility for research in forensic science. We recommend that UK Research and Innovation urgently and substantially increase the amount of dedicated funding allocated to forensic science for both technological advances and foundational research, with a particular focus on digital forensic science evidence and the opportunities to develop further capabilities in artificial intelligence and machine learning.”
In their reply to this recommendation, the Government said that they would
“ensure that policing and the CJS benefit from advances in science and technology by developing and implementing new forensic techniques more coherently.”
They added:
“The Home Office and the Ministry of Justice are focussed on developing an even stronger working relationship with UKRI as we work with them and other strategic partners to develop and set strategic priorities for forensic science research and development.”
The Government’s response, however, makes no reference to either foundational research or evaluative interpretation.
In closing, will the Minister update us on her response to these two recommendations? Have the Government concluded their careful consideration of the case for a national institute for forensic science and, if so, what did they decide? Has there been an increase in the amount of public funding of forensic science research and has this included more funding for foundational research, as recommended by the Select Committee in its excellent report?
Baroness Jones of Moulsecoomb (GP) [V]
My Lords, I thank the Science and Technology Committee for its work in producing this excellent report, its chair, the noble Lord, Lord Patel, for his masterly exposition of what the report is all about and, of course, the committee’s staff who have been so incredibly helpful in briefing Peers ahead of this debate.
I will now exhibit my worst character defect, according to some of my friends, and say that I was not a member of the Science and Technology Committee, but I was a member of the Metropolitan Police Authority for the 12 years of its existence from 2000 onwards. As soon as the idea of privatising the national Forensic Science Service was floated, I made a speech in which I said, “This is a mistake and it will cause all sorts of problems”. Well, I told you so—rather I told them so. I was very unhappy when it finally went ahead.
The worrying thing that underpins all this, across the forensic sector, committee and the Government, is the acceptance that miscarriages of justice have occurred as a result of the failures, changes and inconsistencies in the way that forensic science is conducted. That innocent people may have been found guilty and guilty people may have been found innocent should worry everyone in this country because it undermines the whole justice system and the rule of law. I am yet to see any serious reflection from the Government on the implications of this or any attempt to ensure that these injustices are remedied.
I will come back to this issue, and I would like the Minister to explain what conversations the Government have had with the Attorney-General and the Lord Chancellor to trawl through these past cases and ensure that any forensic errors are put right and that anyone wrongly convicted has their conviction overturned. This work should be conducted using government funds and should not be constrained by the availability of individuals’ funds or legal aid.
The Government’s response to the report, specifically on legal aid, sadly expresses that they are
“not aware of legally aided defendants being denied access to forensic testing and expert advice for funding reasons.”
Will the Minister expand on the basis of that assertion? Is it founded on ignorance or have they gone out of their way to seek examples of legal aid limits getting in the way of justice? I ask this because some Peers had an email from a forensics organisation that mostly does legal aid criminal defence work. It says that, while the three main laboratories that work with the police have had significant increases in funding recently, there has not been a corresponding increase in funding for the defence. It says that it has tried to engage with the Government about legal aid funding, but to no avail, for example, on the arbitrary limit on travel time of four hours. This does not tally with the Government’s claim that people are being denied access to the forensic science that they need to prove their innocence.
To conclude, I believe that it is impossible to separate forensic science from the wider undermining of criminal justice funding that has occurred during 11 years of Conservative cuts. At the beginning, the noble Lord, Lord Patel, said that somebody gave evidence that a national crisis brought us to this point, but it was not; political decisions by the Conservative Government made it clear that we would take this route. The Government have treated people’s innocence as an unaffordable and optional luxury, rather than the underpinning of the fabric of society’s trust in the justice system. When people realise that innocent people can go to jail and guilty people can go free because of failures in the system that the Government have allowed to happen, the whole system is doomed.
The Deputy Chairman of Committees (Lord Palmer of Childs Hill) (LD)
My Lords, the noble and learned Lord, Lord Morris of Aberavon, has withdrawn, so, I now call the noble and learned Lord, Lord Thomas of Cwmgiedd.
Lord Thomas of Cwmgiedd (CB) [V]
My Lords, it was a great privilege to have been co-opted to this committee for this inquiry, and a privilege, pleasure and education to serve under the wise and far-sighted leadership of my noble friend Lord Patel.
During the course of the evidence, it was sad to hear that the respect in which the leadership the UK had shown in forensic science had declined so rapidly. Only a few years before, that leadership had been celebrated at a conference organised by the Royal Society, which demonstrated that the UK was then significantly ahead of several states and of the leaders in the field, which are acknowledged to be Australia, Switzerland, the Netherlands and the United States. I had hoped that this report would provide the opportunity for the UK to regain that lead, particularly as a result of serious issues relating to forensic science that had arisen in the United States under the leadership of its then President.
The report concluded that the failings in the system were due to three matters: lack of high-level leadership, lack of funding, and insufficient research and development. The noble Lord, Lord Patel, gave a perfect overview, and I join him in tributes to those who advised the committee. Other noble Lords have dealt with other issues, in particular the market, AI and miscarriages of justice. I will confine my remarks to leadership, and to research and development. I appreciate that the criminal justice system’s focus over the last year and a half has been on dealing with the problems brought about by Covid-19, but forensic science is essential to justice and nothing can excuse a failure to plan ahead now to restore its position.
I therefore turn first to the need for high-level leadership. I tried to find out what has happened since the Government’s response to the report in July 2019. The criminal justice board publishes its minutes. The minutes of July 2020—the last I was able to find—said this. They are short, so I can quote them:
“Forensics: Stocktake 2020 … The LORD CHANCELLOR spoke about the importance of forensics within the CJS and was pleased to receive an update from the Forensics Sub-Group to the CJB which is jointly chaired by the Ministry of Justice and Home Office.
BARONESS WILLIAMS OF TRAFFORD noted that the Sub-Group had identified the need for the Forensic Science Regulator to become a statutory body.
The LORD CHANCELLOR thanked the Sub-Group for all their work and invited Board members to provide further comments, outside of the meeting, on the paper presented.”
If I may respectfully say so, I am afraid that is not very informative as to progress over a year.
More seriously, the criminal justice board has much else to do. In the years I served on it or went to its meetings, which was shortly after its formation until I retired as Lord Chief Justice, it was not the kind of body, nor was any sub-group, that was effective on the detailed issues that require great expertise and knowledge of science and the law with which this issue is concerned. However, more serious is the problem that the work on forensic science needs to be independent and accountable. The minutes show how unaccountable it is because there is no explanation of what it does, and it cannot be regarded as independent. Forensic science needs to serve the police, the prosecution, the defence and the interests of justice. It is very difficult to see what the criminal justice board sub-group has done on that first issue.
The second thing, which is about to happen, is putting the Office of the Forensic Science Regulator on a statutory basis. Dr Gillian Tully was an excellent regulator. She retired two months ago—she was a pleasure to work with and achieved a great deal. Her most recent achievement was dealing with the very difficult subject of standards for evaluating opinions, which play such a large role in the evaluation of forensic evidence. There is an interim regulator, but when is the new regulator to be appointed? When will the Government look seriously at its powers? That is the key issue. Although the regulator’s role is key, it is not that of leadership. It is to ensure quality and accreditation, and that the market functions efficiently. It is not independent and it cannot provide the holistic leadership of scientific research required in our system.
I look forward to hearing that much more may have been done, but I could not find it. Maybe that is due to my inability to trawl the records in sufficient detail, but I could find no explanation elsewhere. I very much look forward to what the Minister can say about progress. The UK needs to be back at the top of the league, and it can do that only with holistic leadership of the kind set out in the report.
The second aspect I briefly refer to is the need for proper funding of independent forensic research. Again, I refer to just two areas: digital and DNA. It is clear from the evidence received by the committee and from evidence I received when chairing the Welsh Government’s Commission on Justice in Wales that digital forensics remains a major issue. Indeed, it has been an issue for the last nine years. Two things have gone hand in hand: the increased power of mobile devices and their ability to store so much, and the increased use of them to communicate in permanent record things that would never have been recorded before, which comes as a surprise to many. They are therefore essential to the administration of justice—not only for establishing guilt but for showing that conduct that may be complained about was innocent.
The use of digital forensics is important to the deterrence of crime through successful prosecution, the confidence of victims in the system, as assurances about the way information is contained in phones is critical, and, equally importantly, the proper use of police time. For example, in commercial litigation, increasingly sophisticated and independently reliable software has made a very significant difference. It extracts and searches properly and reliably. As far as I can ascertain, there are still serious issues with what needs to be done to tackle these matters—extraction and particular searching—so that something reliable is available to the police, the prosecution and the defence, which is so critical to the three issues to which I have referred. There are other aspects, including AI, facial recognition and deepfake, about which the noble Lord, Lord Mair, has spoken and which underline the urgent need to address an area that requires significant leadership and investment.
DNA has been essential to the criminal justice system since the 1990s. It has made a significant contribution to the conviction of the guilty and, equally importantly, the exoneration of the innocent. It has been a journey not without its problems: low-template DNA brought about serious miscarriages of justice in the way in which it was first used, and mixed and partial profiles and transfers have been a real problem. Much has been done; the Royal Society has led with a primer on this subject, which is parallel to the one spoken of a short while ago. But as I understand it, there are issues with mixed and partial profiles and transfers, and much more needs to be done. These are but two examples of the need for development and research—and it is development and research that are both scientifically independent and not dependent on police budgets.
The forensic science budget, to the extent that it is now largely in the hands of the police, must be looked at again. As the noble Lord, Lord Krebs, stated, I very much hope that the Minister is able to tell us a bit more about what UKRI has been doing, what advice it is taking and what it is going to do to bring investment to these vital areas.
Let me look at a way forward. I hope that the way forward will be by government action. In March 2011, the Law Commission produced an excellent report on expert evidence and draft legislation. Two years later, the Government said they would not bring forward a Bill and, therefore, made it clear that it was up to others—leave the law as it is, or look for change. All the reforms envisaged by the Law Commission were then brought about by the Criminal Procedure Rules, much to the benefit of the criminal justice system, and they worked.
The report we have been speaking of is the 10th in 10 years. As far as I can ascertain, nothing much has happened, although I hope the Minister will be able to tell us otherwise. It may be that it is because structures are not devised to be accountable or informative. However, forensic science is essential to justice, as the speech of each of your Lordships has shown, and it is essential to keep the UK at the forefront of world leadership in science and the law.
I trust that Her Majesty’s Government will not fail in restoring the position, but if they do, I hope that we will be able to find an example similar to that which was taken in relation to the report of the Law Commission and find another way to put into operation this excellent report, if Her Majesty’s Government feel unwilling or unable to do so.
Lord Fox (LD)
My Lords, I often start speeches by saying that it is an honour to follow this or that noble Lord, but I have to say that it is absolutely a great honour to follow the expertise that we have heard already, led off by the outstanding speech by the noble Lord, Lord Patel—a counterpoint to his outstanding leadership of the committee in producing this report.
We are here today to celebrate the second birthday of this report. It was published in April 2019, when I was a member of the Science and Technology Committee. The Government responded in July 2019, and it is safe to say that some water has passed under the bridge since that summer. The first thing was the general election in 2019 and then, of course, Covid. The general election means that in fact the Government are a different Conservative Government from the one who made the initial response, although I note that the Minister has remained the same. I therefore assume that the Minister stands by the response that was made by that different Conservative Government and that we are not, as in other cases, dealing with a distancing.
When it comes to the pandemic, the criminal justice system has, like all aspects of public life, come under extreme pressure. The backdrop for discussing this could hardly be more difficult, and that is not only because of the virus. The Lords Constitution Committee set out the issues last month. The pandemic, it said, has left the court system in England and Wales in “crisis”, with a backlog of cases that could take years to clear. Importantly, it also said that a decade of cuts has meant that the court system was already in a “vulnerable” state when the disease outbreak occurred last year. It continued:
“Without adequate resources, technology or guidance, our much cherished justice system remains at risk.”
That report very much reinforces the situation that we are discussing today about the forensic science service. I hope that Covid is not used as an excuse for where we are now.
In their response to the report, the Government were clear:
“The Government agrees that the ‘delivery of justice depends on the integrity and accuracy of evidence’.”
They also said that
“our top priority is to prevent miscarriages of justice.”
Those are both very reassuring comments but, of course, without willing the means, they are quite flimsy. We should therefore ask the Minister whether she thinks the Government are doing everything possible to ensure that evidence is as accurate as possible and whether they are doing all they can to avoid miscarriages of justice. If the noble Baroness, Lady Williams, is frank, as she usually is, I am sure she will be able to indicate that there is work to be done, and it would be important to indicate what the timeline for that work is. Not to put too fine a point on it, as other noble Lords have mentioned, more often than not, justice hinges on forensic evidence. If the evidence is inaccurate or inadequate, justice is compromised, and, as many of your Lordships have said, once confidence in the evidence goes, confidence in the whole justice system is compromised, and that is central to our democracy.
I hasten to add that, thanks to the dedication and hard work of many practitioners, that terrible situation is largely avoided. But I ask the Minister: what about the environment these people work in? Does it have the finance it needs? Does it have leadership? Does it have a structured approach to standards? Is it doing the necessary work to embrace the future? Is there equal access to necessary services?
Many of these points have been covered by other noble Lords, so I apologise for some repetition, but I am going to take each of them in turn. There will be many questions; indeed, there already have been. I hope the Minister will undertake not just to answer as many as possible in her verbal response, but to answer them in writing, and to publish the answers in the Library. She is nodding, which is very helpful.
First, does the forensic science service have the finance it needs? We have heard what the Constitution Committee said about the whole justice system, and of course the forensic science service has not escaped. As the noble Lord, Lord Mair, said, in 2010 some £120 million was spent on forensic science, but in 2019 that had dropped to £50 million to £55 million. Can the Minister tell us what the budget for this year and next year is?
In the Government’s response on the issue of market stability, the role of a special team set up by the National Police Chiefs’ Council within the forensics capability network was highlighted. That team, they said, was going to co-operate across police forces and
“manage commercial strategy; manage contracts; co-ordinate capability building and provides long-range demand forecasts.”
The noble Lord, Lord Griffiths, who is sitting opposite me, knows more about markets than most people, and I hope that the Minister will study carefully his critique of this situation. I had written down, “This is a good way of creating a more effective monopsony”—and that is exactly what is happening. It does not help the structure of the service providers one iota.
What has this body actually done? How many police forces have now bought into the network—and, by exclusion, how many have not bought in? What concrete initiatives have we seen over the past two years in terms of the market, and market structure? How do the Government assess the stability of the market—or who do they rely on to make that assessment for them? I think it was the noble Lord, Lord Winston, who said that some private sector companies had adapted their services to the Covid situation. We need to study this on pure forensic service terms.
The Government also committed to provide
“all budget holders with data and measures to assess the impact of forensics spend on outcomes in the criminal justice system.”
I find that a very intriguing sentence. What outcomes are being targeted? Is it pounds per conviction, or what? What data, what measures, are the Government providing to budget holders, and when will those measures and that data be published?
The second issue is leadership. We have heard categorically from many speakers how our proposal for the creation of a forensic science board was designed to create strategic focus. I am not surprised that Her Majesty’s Government damned the idea with faint praise—or rather, with no praise at all. What they offer instead is an alphabet soup. We have the MoJ, the Home Office, the National Police Chiefs’ Council, the Forensic Capability Network, the College of Policing, the criminal justice boards, UKAS, the Chartered Society of Forensic Sciences, UKRI, the Forensic Science Regulator and, of course, all the companies in the private sector providing the service. I am sure I have missed some out. I have one simple question for the Minister: in the regrettable instance of a miscarriage of justice due to a problem with the forensic evidence, where does accountability lie? With whom does the buck stop?
My third question is: does forensics have a structured approach to standards? In this area I am uncharacteristically optimistic, or I have been led to be optimistic by the noble Earl, Lord Lindsay, who set out the work the regulator is doing with UKAS. However, as other noble Lords have said, the regulator needs the powers and the resources. It would be helpful if the Minister could say where those resources are going to come from—because if they came from a levy, that would be levying an already impoverished sector.
Is the forensic service doing the necessary work to embrace the future? That is a debate unto itself, and we have heard phenomenal contributions from some of your Lordships. The Government’s response raises the prospect of a document that the Forensic Capability Network is creating, a five-year road map to prioritise rapid development in key areas such as DNA and digital innovation. I looked for this document and could not find it. Does it exist? If it does not, can the Minister confirm which five years it is supposed to cover? If it does, can he explain where we might find it?
Finally, is there equal access to the necessary services? This is the most vital single issue. Without equal access, we do not have equal access to justice and without justice we do not have democracy. The report set out the issue of access to forensics for defendants, particularly those on legal aid. As we have heard, the Government said that they were not aware of legally aided defendants being denied access to forensic testing and expert advice for funding reasons. That flies in the face of the evidence that we heard. The chairman of the committee, the noble Lord, Lord Patel, set out a clear case as to why the Government should be concerned about this.
The noble Lord, Lord Griffiths, talked about asymmetry in the market, and there is a very important asymmetry that we have not talked about yet in detail. It concerns the availability of service, and here I cite none other than the website of the Forensic Science Network itself. On the homepage of the network—and in a minute we will remind ourselves how important it is to the Government—it says:
“Welcome to the new network for forensic science in England and Wales, supporting more than 4,000 specialists with critical services, advice and technology.”
So far, so good. We then come to the strapline:
“FCN is the UK’s largest forensic science network—for policing, by policing.”
Watch those words. It reinforces this elsewhere, as is clear if you dive into the question of its purpose. It says that it
“provides much of the evidence that can identify and bring offenders to justice.”
It characterises forensics in that way, while I and the rest of the committee characterise forensics as bringing justice to a court proceeding. That is not the line the FCN takes.
Let us remind ourselves that this is the FCN that is tasked to set out strategies, as we have heard earlier, and that is managing the market for forensics. The noble and learned Lord, Lord Thomas, spoke about the need for independence. This is in no shape or form independence. An independent forensic service is one way of going about gaining that independence; this report goes another way and talks about having a structure that delivers independence. I conclude that this service has not delivered, and not just because of financial starvation; structurally, there is a big problem in the middle of the way this service is delivered, and the Government should very carefully look at this debate and this report.
Lord Rosser (Lab) [V]
First, I, too, congratulate the noble Lord, Lord Patel, and his committee on the report, which is very clear in its message, findings and recommendations. Just over a month ago, we had the Second Reading debate on the Forensic Science Regulator Bill. During that debate the noble Lord referred to the Science and Technology Committee, as its chairman, and the report we are now discussing. He said that the regulator Bill, which he supported and welcomed, was nevertheless a
“missed opportunity for the Government to address other issues in relation to forensic science and its use in the criminal justice system. The quality and delivery of forensic science in England and Wales are inadequate”.—[Official Report, 19/3/21; col. 591.]
The noble Lord has repeated that statement today. What were those other issues and why is the quality and delivery of forensic science in England and Wales inadequate?
During the debate last month, the noble Lord, Lord Patel, asked what role the Home Office and the Ministry of Justice would play in the governance of the forensic science service, as there was, he said, a lack of leadership. The noble Lord also said that there was an increasingly dysfunctional forensic science market, that the quality of forensic science needed bolstering and that research and development in forensic science was underresourced and lacked co-ordination. He said that the United Kingdom used to be regarded as the world leader in forensic science technologies and innovation, but that we are now regarded as a place where not to look, including in digital forensics, where the demand for digital evidence and the complexity of the requirements continues to grow. Today, the noble Lord has also referred to the impact of budget cuts, reorganisations, cuts to legal aid and exponential growth.
In the Second Reading debate on the regulator Bill, my noble friend Lady Young of Old Scone, who was also a member of the Science and Technology Committee, referred to the instability of larger providers, the patchiness in availability of specialists and niche providers, and the lack of a strategic overview of future skills and staff requirements—all pretty damning observations, many if not all of which have been repeated in speeches today.
In their response to the debate last month, the Government said that the decision to close the Forensic Science Service in 2012 was taken because it was losing an estimated £2 million a month. As with the ill-fated probation service reorganisation, it looks as though the Government paid scant regard to the effectiveness, stability and suitability of the alternative arrangements that were introduced—hence, we are in the position we are in today, with inadequate forensic science provision in the criminal justice system.
I quote the last paragraph of the summary of the committee’s report:
“Unless these failings are recognised and changes made, public trust in forensic science evidence will continue to be lost and confidence in the justice system will be threatened. Crimes may go unsolved and the number of miscarriages of justice may increase. Furthermore, world leading specialist expertise will be under-used, and England and Wales may never regain its reputation as holding the international benchmark for forensic science. This report follows others that have raised similar concerns, yet the changes that are necessary have not been made, despite acknowledgements that they would be. Forensic science in England and Wales is in trouble. To ensure the delivery of justice, the time for action is now.”
Yet, there seems to be no shortage of bodies, organisations and programmes involved in forensic science services—a point that the noble Lord, Lord Fox, drew attention to. That is possibly part of the problem.
The Government’s July 2019 nine-page response to the report refers to the Forensic Science Regulator, UK Research and Innovation, Home Office Science, the Forensics Policy Steering Group, the Criminal Justice Board, the Home Office, the Ministry of Justice, the forensic science strategy, the National Police Chiefs Council, the Forensics Capability Network, police and crime commissioners, the Legal Aid Agency, local criminal justice boards, the United Kingdom Accreditation Service, the Chartered Society of Forensic Sciences, the regulator’s advisory council, the Royal Society, the Transforming Forensics programme, the Criminal Procedure Rule Committee, the digital investigation and intelligence programme and the College of Policing, in addition to police forces, providers and criminal justice system stakeholders.
The Science and Technology Committee report we are discussing refers to the problems highlighted by noble Lords today and during the Second Reading debate on the Forensic Science Regulator Bill last month. However, as has been said, the report was published exactly two years ago this coming Saturday. The Government’s response to the committee’s report was published in July 2019—one and three quarter years ago. I may be in a minority, but I do not see how the role and effectiveness of this House is enhanced by that kind of delay in discussing one of our own committee’s reports.
The only benefit that the lengthy delay had is that it makes it more difficult for the Government credibly simply to tell us what they intend to do in response to the report, as opposed to what they actually have or have not done, and what specific improvements have already actually been delivered over the last one and three quarter years since they published their response. I will look for the Government to spell out what specific improvements there have actually been in the provision and delivery of forensic science in the light of the recommendations made and problem areas identified by the committee in their report beyond the completion of the passage of the Forensic Science Regulator Bill.
During the debate last month, the Government referred to the presentation of plans to the Criminal Justice Board; setting out four key pillars of a forensic science reform programme; work being progressed with the Ministry of Justice, the regulator’s office and other stakeholders; investing £28.6 million to accelerate innovation and combat crime; providing police forces with specialist support functions; publishing a digital forensic science strategy; developing a workforce strategy; and supporting the Forensic Science Regulator Bill—something they said they would do five years ago. The impression I got from that government response last month is that, over the last two years, there have been no actual specific improvements to the inadequate quality and delivery of forensic science in the criminal justice system as identified and spelled out in the Science and Technology Committee’s report.
If I am wrong in saying that, could the Government, either in their response today or subsequently in writing, spell out what those measurable, specific improvements in the quality and delivery of forensic science have been over the last two years that have addressed issues identified by the committee in their report? If I am basically right in saying what I did, could the Government, either in their response today or subsequently in writing, spell out what measurable specific improvements to the inadequate quality and delivery of forensic science in the criminal justice system identified and spelled out in the Science and Technology Committee’s report they are now committed to introducing, implementing and achieving, and within what specific timescale?
Too much of the Government’s written response in July 2019 and in the debate last month seemed to be about changing the way things are done, rather than a commitment to delivering specific, clearly identifiable and measurable improvements in the quality and delivery of forensic science in England and Wales, which the committee’s report said was inadequate. The Government said in the conclusion of their response in July 2019 at paragraph 24:
“Through implementation of the joint-review of forensic science and its ongoing consideration of their Lordships’ recommendations, the Government expects the provision of forensic science into the criminal justice system to be significantly strengthened. The Home Office and the Ministry of Justice are jointly responsible for bringing about the collaboration, investment and oversight required to make this happen.”
If the Government are confident that what they intend to do will deliver specific, clearly identifiable and measurable improvements in the quality and delivery of forensic science services, they should set out what those improvements will be, how they will be measured and within what timescale. It is called being accountable. If they cannot, how can we or they judge in the future whether their response to the issues the Science and Technology Committee has said need addressing has actually delivered? Like other noble Lords, I await the Government’s response, including the extent to which they do or do not intend to implement the recommendations in the committee’s report.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I thank the noble Lord, Lord Patel, for securing this vital debate. I also thank the Science and Technology Committee for its very thorough inquiry into forensic science, and for its subsequent report. If I may, I will go through the tenets of the report and the questions arising from it today.
The report was clear—my noble friend Lord Lindsay spoke enthusiastically about this—that the Home Office and the Ministry of Justice needed to provide joint leadership in forensic science, and that the governance needs to inspire effective collaboration and co-operation across operationally independent bodies. As a direct result of your Lordships’ report we created a steering group, jointly chaired by the Home Office and the Ministry of Justice. It soon became an official sub-group of the criminal justice board, reporting to the Home Secretary, the Justice Secretary and the Attorney-General. The sub-group is delivering a vital reform programme, which I will come to later, but this spirit of co-operation has strengthened over the last two years. Its work is ongoing and it meets every six weeks.
To reiterate, this Government are committed to protecting the public and keeping our streets safe. Scientifically robust evidence is one of policing’s most important tools for investigating crime. The successful prosecution of county lines drugs gangs, sexual offences and violent crimes often depends on high-quality forensics, including digital forensics and DNA analysis. We should always remember the Stephen Lawrence case. It was only because British scientists were able to detect and analyse a drop of blood measuring less than 1mm in diameter that his family was finally able to achieve some measure of justice.
Despite everything said this afternoon, this country has some of the world’s best forensic scientists, both in public law enforcement and within the private sector. Every day, their expertise is deployed to solve crime and deliver justice. The noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Lord, Lord Rosser, talked about comparators with other countries, particularly across Europe. When compared to nine other networks of forensic science institute state labs across Europe, the turnaround time in England and Wales using comparable metrics is world-leading. The turnaround time for drugs casework in England and Wales is 21 days; elsewhere, it is 24 days. For DNA casework, in England and Wales it is 10 days; elsewhere it is 43 days. We really should commend our forensic scientists here in the UK on their ability to turn things round.
I also welcome the significant efforts made by those involved in this work to markedly improve turnaround times. As noble Lords have pointed out, however, forensic science has faced challenges in recent years, including constrained resources—as I think all noble Lords have said—and an exponential growth in the volume of new sources of evidence, such as digital material. To answer the questions of the noble Lord, Lord Krebs, and others we have taken steps to address this by investing over £28 million in 2020-21 in the Transforming Forensics programme and a further £25.6 million in 2021-22 to continue to strengthen forensics services for policing, including digital forensics, which the noble Lord, Lord Mair, spoke about. We helped to set up the police-led Forensic Capability Network and our investment in it is bringing some much-needed stability to the commercial market.
When it comes to quality, the former forensic science regulator worked closely with all partners to establish standards for the collection, analysis and presentation of evidence. These are established in the regulator’s codes of practice. Adherence to these codes, whether partners are employed by police forces or privately contracted, plays a key role in ensuring that the evidence used in investigations and presented to court can be relied on—which noble Lords have underlined this afternoon.
The former regulator rightly highlighted in her most recent, and final, annual report, as well as in discussion with my department, that the inability to enforce those standards has resulted in slower progress towards compliance with quality standards across the forensic community. I agree. That is why we fully supported legislation to give the regulator the power to enforce quality standards as a last resort, and to take action when it has reason to believe that substandard forensic science activities are creating a substantial risk to the course of justice.
The noble Lord, Lord Winston, talked about the Randox case. Obviously, it is subject to an investigation at the moment so I will not talk about it. But the legislation we supported is a very specific improvement that I know the noble Lord, Lord Rosser, and the Committee, will agree with. I know that there are noble Lords and others who think that the legislation did not go far enough. We do not claim that giving the regulator these important statutory powers will, on their own, be enough to address all the issues currently facing the provision of forensic science—not at all. Nevertheless, it represents a significant milestone in the delivery of quality forensic services in England and Wales. I thank the noble Lord, Lord Kennedy of Southwark, for successfully stewarding the Bill though the House.
To address the point the noble Lord, Lord Fox, made, there is of course more to do. That is why we are working with the Ministry of Justice, the Office of the Forensic Science Regulator, policing, the Attorney-General’s office and other key stakeholders to deliver our forensic science reform programme. That programme was agreed by the Criminal Justice Board in July last year. It will make good on the commitments set out in the joint review of forensics provision implementation plan published in 2019, and will go some way to tackling the issues identified in the committee’s excellent report. The reform programme is organised around four pillars to deliver strategic oversight and leadership across the criminal justice system for the future of forensics.
The first pillar is police capabilities. In 2021-22 we are providing £25.6 million in funding to the police-led Transforming Forensics programme, as I said, so that it can continue to build the Forensic Capability Network to provide specialist support functions to forces such as increased capacity in digital forensics, particularly in child sexual exploitation investigations.
The second pillar is regulation of provision. I have already spoken about the Forensic Science Regulator Bill. We are also providing a clear legal framework for the extraction of information from digital devices belonging to victims and witnesses through the Police, Crime, Sentencing and Courts Bill. We will provide guidance on the use of this power through a statutory code of practice. We will also consider the legal framework for suspects through the response to the Law Commission report on search warrants.
The third pillar is criminal justice system capabilities. The MoJ is working to increase the transparency of expert witness credentials and ensure that defendants have equal access to experts. To answer my noble friend Lord Griffiths’ question, the CPS and Judicial Office, together with other key stakeholders, are helping to oversee and deliver on this important strand through their membership of the forensics subgroup.
The fourth pillar is research and development. Home Office Science and the Forensic Capability Network are working together to identify current and future research needs and to design and implement a research and development model to meet the needs of the sector. Home Office Science has developed strategic mapping of potential funding routes for forensic science research and development. In addition, the Forensics Capability Network has developed working groups across the sector to inform the research strategy and development of capability road maps for forensic disciplines. Taken with the legislation to give the Forensic Science Regulator statutory powers, we think that this reform programme represents a joined-up and concerted effort to address the issues facing forensic science in England and Wales.
Those are, basically, the tenets of the report; I now turn to specific questions. If I do not get to any of the questions that noble Lords asked—there were quite a lot of very sensible questions—I will follow up in writing, as I usually do.
The noble Baroness, Lady Walmsley, talked about training, and I agree with her. But, of course, the police are operationally independent, and we cannot dictate on this as a Government. However, the statutory regulator can investigate labs, including police labs—which the noble Lord, Lord Winston, mentioned—that fall short of standards.
My noble friend Lord Lindsay asked about the accreditation of services; this is tied up with powers for the regulator. By having statutory investigatory powers, she will be able to take action against providers who fail to get accreditation.
The noble Lord, Lord Mair, asked about the procurement model. The forensics subgroup has representation from the Association of Forensic Science Providers and the commercial arm of policing’s Forensic Capability Network so that market issues and procurement are discussed.
On my noble friend Lord Griffiths’ question about police provision, again, they are operationally independent. It is for them and the PCCs to decide what is best, and they can best determine what is needed.
The noble Lord, Lord Krebs, asked about the national institute. I will write to provide a more fulsome response, if he is okay with that.
The noble Lord, Lord Fox, made absolutely the right point about evidence being as accurate as possible—we do not have an effective criminal justice system if it is not. I think that giving the regulator statutory powers will drive up quality standards and help ensure the accuracy of evidence. The MoJ is leading on work to ensure that forensic science is properly presented in court. On the budget, we will work closely with the regulator’s office to ensure that it gets the resources it needs. We assess the stability of the market via the subgroup, and the Home Office and the MoJ are accountable for this. I will write on some of the other points that the noble Lord made.
The noble Baroness, Lady Warwick of Undercliffe, and the noble Lord, Lord Rosser, alluded to the Forensic Science Service that closed in 2012. They did point out, of course, that it was losing £2 million a month of taxpayers’ money. While that is not a reason for its closure, there were repeated failings in addition that led to multiple case reviews and retesting programmes. The move has brought benefits. Commercial provision has had a significant positive impact on the delivery of forensic science, including increased resilience, faster turnaround times and reduced costs. I read the report thoroughly and I noted that the committee did recognise that a return to the FSS was not a desirable way forward, as my noble friend Lord Griffiths pointed out. We are now more joined-up than we were in 2019.
The noble Lords, Lord Patel and Lord Rosser, referred to budgets continuing to be under pressure while the demand for digital evidence and the complexity of its requirements continue to grow. The noble Lord, Lord Rosser, referenced the noble Baroness, Lady Young, talking about this at last month’s Second Reading of the Forensic Science Regulator Bill. Our forensic science reform programme recognises that the demand for digital evidence and the complexity of its requirements continue to grow. That is why I am pleased that the NPCC published its Digital Forensic Science Strategy last summer, and that we invested more than £28 million in 2020-21 in the transforming forensics programme, with a further £25.6 million to come.
The noble Lord, Lord Patel, talked about the cost to defendants of getting a second opinion on forensic evidence being greater than the legal aid budget will fund, meaning that there is the potential for unsafe convictions as evidence cannot be effectively challenged in court. Legal aid regulations prescribe the maximum rates that are payable to forensic scientists and other experts, but these rates can be exceeded in exceptional circumstances. The Ministry of Justice is currently working to increase the transparency of expert witness credentials and ensure that defendants have equal access to experts.
The noble Lord, Lord Patel, and I think another noble Lord on the committee talked about the regulator working 3.75 days a week. The regulator is currently defined as a part-time role, but we recognise that they will have a higher workload as a result of the legislation, and there will be additional recruitment to the regulator’s office to meet this need.
I think it was the noble Baroness, Lady Walmsley, who raised concerns about unqualified individuals being able to pass themselves off as experts in court when their credentials may be in doubt. I agree with her concerns, and the powers contained in the Forensic Science Regulator Bill will enable the regulator to publish lists of those unsuitable to be instructed as experts.
There was a final question from the noble Lord, Lord Patel: where in the Government does accountability lie for the quality of provision of forensic science services to assist the justice system? It is a joint effort by the Home Office and the Ministry of Justice, but, in answer to the question put by the noble Lord, Lord Fox, about who the buck ultimately stops with, it stops with the Home Office: that is the straight answer to a straight question.
Before I finish, I will just thank Gillian Tully—other members of the committee have also done this—for her excellent work and dedication to the role. I hope that her replacement will be just as good as she was.
I thank the committee and I will follow up any questions I have not answered in writing.
Lord Patel (CB) [V]
My Lords, I thank the Minister for her comprehensive response. I also thank all noble Lords for their thoughtful, measured and excellent contributions. This has been one of the best debates I have heard or taken part in in recent days. In response, it is not in my nature to be confrontational, and I shall not be, and the Minister’s response showed that much of the work is in progress. She also suggested that the Government had taken note of some of our recommendations and are finding a way to take them forward. I hope that is correct, because she has heard all the contributions today, which were not only powerful but well-meaning and supportive.
I think there is a recognition that the way in which the forensic science service serves the criminal justice system needs to be looked at. If that is the message I am getting from the Minister today, I am satisfied. Of course, that gives the Science and Technology Committee an opportunity, especially as the report is now two years old, to revisit the subject—maybe in about 18 months’ time—with a short follow-up report. We may well do that, but for today I simply thank the Minister and all noble Lords who have taken part in this excellent debate.
The Deputy Chairman of Committees (Baroness Watkins of Tavistock) (CB)
That completes the business before the Grand Committee this afternoon. I remind Members to sanitise their desks and chairs before leaving the room.