Forensic Science Regulator and Biometrics Strategy Bill

Bambos Charalambous Excerpts

2nd reading & 2nd reading: House of Commons
Friday 25th September 2020 Commons Chamber

[Bambos Charalambous (Enfield, Southgate) (Lab)]

Before I begin, on behalf of the Opposition, I express my deepest condolences to the officer who was killed in Croydon police station last night. It is a tragic and shocking loss that reminds us how important it is to recognise the risks that our police officers face and take every day of their lives. I also associate myself with the remarks of the Minister and other Members who paid tribute to the sad loss.

I congratulate my hon. Friend the Member for Bristol North West (Darren Jones) on his timely and much needed Bill, which covers an area that has not had much attention in recent years. I also congratulate Members who have taken part in the debate on the manner in which they have conducted themselves and on their broadly warm consensus on the Bill. I very much hope that we will see progress as a result of the debate.

In order to understand why the Bill should be welcomed, it is necessary to look back at key points in Parliament’s interest in the work of the Forensic Science Regulator. In the heyday of the coalition Government, the House of Commons Science and Technology Committee carried out an inquiry into the Forensic Science Regulator, publishing its report on 17 July 2013. In its conclusion, the Committee made the following recommendations.

On quality standards, it said that

“there must be a level playing field between those who conduct forensic tests for the police, prosecution and defence. In particular, the police must work to the same quality standards as they demand from external forensic science providers.”

On a Forensic Science Regulator, the report concluded that

“the disparate nature of forensic science provision across the public and private sector means that the role of the FSR now needs a statutory underpinning. The current FSR has done an excellent job in raising the profile of forensic science quality standards during his tenure, and this must be continued.”

That was back in 2013.

As part of the Government response to the inquiry, on 8 November 2013 the then Home Office Minister Norman Baker made a written statement announcing the launch of a consultation on strengthening the powers of the Forensic Science Regulator. Acknowledging the regulator’s role in setting standards, and accepting that the meeting of standards by forensic service providers was voluntary, he added:

“there is a risk that voluntary quality standards might not, in the future, provide the high level of assurance required for forensic evidence. For that reason we now propose introducing stronger powers, including putting the regulator’s codes of practice, which set out the quality standards for forensic science providers, on a statutory basis.”—[Official Report, 8 November 2013; Vol. 570, c. 24WS.]

That was back in 2013 when there was a consultation which clearly showed the Government’s intention of the day.

Following the consultation, the Government’s response in July 2015—things sometimes move slowly in the Home Office, although hopefully that will now change— showed that the overwhelming number of respondents agreed that all stages of the forensic evidence process should be covered by the regulator’s statutory powers, as should all forensic science disciplines. The section entitled “Next Steps” stated:

“The Home Office is developing a Forensic Strategy to be published by the end of 2015. This will consider current and emerging opportunities and challenges in the forensic landscape. Alongside this work, options for the Forensic Science Regulator are being considered and the way forward will be published alongside the Strategy.”

That strategy was published in March 2016, and page 7 includes the aim of having a clearer statutory role for the Forensic Science Regulator. Paragraph 44 states:

“We will develop proposals to give the Forensic Science Regulator statutory powers, put the current remit and the associated Codes of Practice on a statutory basis and enable the Forensic Science Regulator to investigate non-compliance where necessary.”

That was in the strategy, and the Bill does exactly what was set out in 2013, 2015 and 2016. Since then there have been ample warnings and opportunities for the Government to take action and implement their own strategy commitments, but despite further scrutiny from the Lords and Commons, via the respective Science and Technology Committees, they have not yet done so.

The hon. Member for Bolton West (Chris Green) gave an excellent speech and is clearly an expert in this area. He introduced the Forensic Science Regulator Bill in March 2018, but despite promises from the Home Office and its responses to the Select Committees, the Bill did not progress and action was not taken. That was unfortunate, but we are where we are. I am pleased the Government have indicated that this time they will support the Bill.

The Bill aims to put the forensic science regulator on a statutory footing so that it has investigatory and enforcement powers to use against non-compliance by forensic science service providers, with standards advised by the regulator. It seems perverse that the regulatory position was created to set standards, but there was no way of compelling anyone to follow them. Although there has been a reasonable level of compliance with established areas of forensics, new and evolving areas such as digital forensics tell a different story. Levels of compliance with ISO standards in digital forensics are less than 30%.

The Forensic Science Regulator, Dr Gillian Tully, has always maintained that although under the current system we can get average compliance of 75% across all forensics, the final 25% can be achieved only with enforcement powers. That is what the Bill seeks to achieve. The code of practice in clauses 2 to 4 sets out the statutory footing for forensic science standards. Clauses 5 to 7 give the regulator enforcement powers to ensure that the code is complied with. The powers of investigation include the power to require the production of documents or the provision of other information, with the sanction of legal measures in the High Court as an ultimate last resort for failure to comply.

Those powers are welcome. The Government’s forensic science strategy from 2016 recommended giving the regulator statutory powers to identify and sanction forensic service providers that fail to maintain standards, and the Bill does the Government’s job for them, because everything within it is exactly in line with that strategy.

It is important to ensure that those standards are met because of the catastrophic impact on the criminal justice system if they are not—hon. Members across the House have made that point. The Government’s strategy refers to the case of the Birmingham Six, who were acquitted of the 1974 Birmingham pub bombings on appeal in 1991. Fresh evidence was introduced that cast doubt on a key piece of forensic evidence that was used at the original trial to secure their convictions. Standards go to the heart of our criminal justice system. We must ensure that standards are met so that the public retain their trust and confidence in the integrity of our criminal justice system.

Experienced forensic scientist Professor Angela Gallop, in her book “When the Dogs Don’t Bark”, gives a compelling account of how, 18 years ago—this case was also referenced in today’s debate—Stephen Lawrence’s murderers were not brought to justice due to lack of evidence. However, new procedures, high forensic standards and a dedicated expert team found fibres from Stephen Lawrence’s clothing and identified and matched a microscopic speck of blood on the clothing of the two men who were later convicted of his murder. The evidence had been there for 18 years, but the standards and methods had not. That is why it is so important to ensure that forensic standards are met and that techniques in the field continue to develop and evolve.

Research in the field of digital forensics identified significant areas of concern with the potential to impact negatively on the production of expert reports and the criminal justice system. Those areas were identified during the process of assessment for accreditation to ISO standards. The evidence therefore supports the need for quality standards in digital forensics. Considering that it is a growing area in forensics, as Members mentioned, regulation is necessary to ensure the robustness of this field. We must maintain the development of our standards to keep up to speed with new developments in technology, and there must be recognition of the challenge of implementing those standards in digital forensics. That should not be underestimated, particularly in an environment where there is insufficient capacity to meet growing demand for services in an area of complexity and fragmented delivery.

I have spoken so far about standards and regulation, but we also need to consider the individuals who work in forensic science. Members have mentioned “Quincy” and other television shows about individuals, but we must not forget the largely public sector workforce who deliver forensics for our criminal justice system. They need to be brought along on a cultural change, but they also need to have their professionalism continually recognised as integral to delivering justice in our system. They are one of the few workforces in society who deal exclusively with death and destruction on a daily basis. Many forensic specialists work in the communities that they live in, and they take great pride in their work when they find evidence that leads to justice and greater protection for their community. We should pay tribute to them for the work that they do, which must have a big impact on them mentally.

Members have mentioned the substantial cuts and continuing squeeze on police budgets, and job losses, particularly in back-office staffing. That has led to a reduction in the capacity for crime scene investigations and other forensic work. I acknowledge that the Minister has mentioned the provision of additional funding, but those cuts have left forensic specialists feeling demoralised and unable to protect their communities. There has to be understanding and sensitivity about the fact that regulation is, inevitably, an additional load on an already overburdened workforce. That needs to be taken into account, and that is why these staff must be brought along with the wider cultural change.

Even the private sector, which carries out a significant amount of police forensics work, is not immune to financial pressures. According to evidence to the House of Lords Science and Technology Committee’s inquiry into forensic science and the criminal justice system in 2019, spending on forensic services reduced from £120 million in 2008, when the FSS was still in existence, to approximately £50 million to £55 million in 2018-19.

There seem to be financial pressures across the board in the whole sphere of forensic services, with those carrying out defence work on legal aid rates among the worst paid. As was mentioned, regulation should not place additional financial burdens on small providers. I know that the regulator has given much thought to this area and has worked with the House of Lords and the Minister to look at ways of reducing costs proportionately for niche and small private providers.

In conclusion, it is worth quoting the current regulator, Dr Gillian Tully. Hon. Members have mentioned what she said, but it is worth repeating that:

“forensic science should be firmly rooted in good science. Courts should not have to judge whether this expert or that expert is ‘better’, but rather there should be a clear explanation of the scientific basis and data from which conclusions are drawn, and any relevant limitations. All forensic science must be conducted by competent forensic scientists, according to scientifically valid methods and be transparently reported, making very clear the limits of knowledge and/or methodology. Implementation of quality standards is a means to this end, ensuring a systematic approach to scientific validity, competence and quality. It therefore remains my absolute priority to publish a standard for the development of evaluation opinions, to ensure that this systematic approach to quality covers all scientific activities from crime scene to court.”

The Bill does exactly that. It is long overdue and will be the first step in rebuilding the reputation and trust in our forensic science service and criminal justice system. I commend the Bill. I hope that the Government adopt it and that it takes the next steps to become law.

Forensic Science Regulator and Biometrics Strategy Bill

Bambos Charalambous Excerpts

Committee stage & Committee Debate: House of Commons
Wednesday 11th November 2020 Public Bill Committees

[Darren Jones (Bristol North West) (Lab)]

It is a great pleasure to serve under your chairship, Ms Eagle, and to be back debating this Bill just six weeks on from its Second Reading. Although it has felt like a pretty long month and a half—especially for those of us who have spent far too much time watching the CNN app—this is legislation a decade in the asking, so six weeks is dizzying progress. It is therefore hugely welcome that we are here, and there are a number of people whom I should thank before making substantive remarks.

First of all, I am hugely grateful to the outgoing Forensic Science Regulator, Dr Gillian Tully, who was rightly recognised with a CBE in the Queen’s Birthday Honours last month in appreciation of her work since being appointed in 2014, and over three decades in the Forensic Science Service before that. Dr Tully has been a constant advocate for the changes given force in this Bill, with her annual reports laying out in unanswerable detail the case for a regulator with the statutory powers to do its job. In her report, Dr Tully not only gives her views as the regulator, but brings to life the stories of many in the criminal justice system who have suffered wrongly from poor standards in forensic science in the past.

Although Dr Tully’s tenure will conclude before the office is able to wield those powers, it is in no small part testimony to her doggedness in making the argument that it will at least have statutory powers. Dr Tully has been enormously generous with her time as we have drafted this Bill, and previously during our inquiry on the Science and Technology Committee, and we are indebted to her. Two successive configurations of Science and Technology Committee, both in this House and in the other place, who have built an invaluable case for statutory powers for the regulator over many years.

More immediately, I would like to reiterate my thanks to the Government, in particular the Minister for Crime and Policing, for their support and willingness for this Bill to proceed, and for offering the amendments that we are debating today to fine-tune the Bill so that it is ready to become legislation. I thank also my hon. Friend the Member for Enfield Southgate and the Labour Front-Bench team for their continued support from the very beginning.

Last but by no means least, I thank all colleagues on the Committee today, and certainly those who helped to corral other colleagues to be here, for which I am very grateful. I am sure hon. Members will be agreeable to this being a short sitting, but I thank them for making the effort to be here.

The broad approval reflected across the debate today highlights the common-sense wisdom of the provisions being put forward. The Forensic Science Regulator has done indispensable work since its creation in 2008, but the market for forensic services in Britain is not working as it should, with shortfalls in capacity, skills and funding, a lack of real competition and an inconsistency in the application of required standards.

Victims of crime, as well as those accused of crimes, must be able to rely on a criminal justice system that can call on high-quality forensic science provided by experts able to demonstrate their competence, with agreed standards across providers. This perhaps small and technical change will make a real difference to people’s lives and their experience of the criminal justice system.

One amendment would change the title of the Bill to remove the suggestion of a biometrics strategy. That has of course been agreed with the Minister and the Government. It highlights the complex nature of biometrics regulation and indeed the scope that one can pursue in a private Member’s Bill. I understand that, as the Minister has suggested, there will be primary legislation on this subject before the House in due course.

In Britain and around the world, Governments need to do much more to regulate the ways in which biometric data is collected, stored and used. The technologies that enable these processes are evolving much more quickly than the oversight that is necessary to hold them accountable. Plugging that gap is crucial to serving the public and the national interest. In that context, although I am happy for the amendment to be made, I hope it does not come at the cost of too long a delay in legislation coming before the House.

In the round, the provisions build on broad, expert consensus, with cross-party support in Committees in this place and the other place, on giving the regulator statutory powers to compel compliance and enforce the outcomes of its investigations. It is a necessary first step in bringing about a better functioning market and raising standards for the long haul. It is a service not just to the criminal justice system, but to the victims of crime. I am sure of consensus across the House in bringing the measures forward, and I look forward to getting the Bill through Committee today and to its final stages.

[Bambos Charalambous (Enfield, Southgate) (Lab)]

It is a pleasure for me as well to serve under your chairship, Ms Eagle. I congratulate my hon. Friend the Member for Bristol North West on having progressed the Bill to Committee stage. I thank the Minister for his letter to me yesterday expressing the Government’s commitment to the Bill, taking the time to clarify their position on the issues raised on Second Reading, and explaining the amendments tabled by the Government.

The Opposition broadly support and welcome the Government amendments, which seek to strengthen the Bill by tackling the issue of the appeals process in clause 8, which goes hand in hand with the new regulatory powers granted to the regulator. We also support the tidying-up amendments to ensure that the clauses do not overlap with other measures that also clarify the scope of the new powers.

The Bill is long overdue. I am sure that all Members will agree that there is a need to put the regulator on a statutory footing to be able to ensure that the standards set by the regulator are met. If enforcement action were not available to the regulator, the standards could not be properly implemented, so we need provision for the regulator to enforce the standards. Forensic science has advanced so much in the last 40 years that it must surely be self-evident that where someone’s liberty is at stake and where the criminal standard is proved beyond reasonable doubt, we should expect high standards from those carrying out forensic science work, and those standards must be capable of being enforced. Voluntary compliance with standards will simply not do.

When we think about Rachel Nickell and Stephen Lawrence, for instance, and how we brought their cases to justice, and how the Birmingham Six were successful in their appeal following new forensic evidence, it is clear why what the Bill sets out to achieve is so important. The integrity of our criminal justice system is at stake; we must not get this wrong. Select Committees in the Commons and the other place have highlighted the pressing need to put the regulator on a statutory footing, and the Government have repeatedly said that they will do so, so I am pleased that they are finally taking steps to make sure that that happens.

In my experience of speaking to forensic scientists in the lead-up to this debate, it is clear that for many of them it is a vocation. In the traditional areas of forensic science there is wide compliance with standards, but that is not the case in other areas such as the newly emerging field of digital forensics, where the level of compliance with ISO standards is less than 30%. Because there is more reliance on digital evidence in criminal justice now, the level of non-compliance to a voluntary standard in that field is very worrying indeed. That is why the measures in the Bill are so important. The outgoing Forensic Science Regulator, Dr Gillian Tully, stated that she can get average compliance across all forensics up to 75% under the current system, but that the final 25% can be achieved only with enforcement powers. That is what the Bill sets out to achieve.

Clauses 2 to 4 establish the code of practice and set out a statutory footing for forensic science standards to be followed. Clauses 5 to 7 give the regulator enforcement powers to ensure that the code is complied with. The powers of investigation include the power to require production of documents and the provision of other information, with the sanction of legal measures in the High Court as an ultimate last resort for failure to comply. The Bill is exactly in line with the Government’s own forensic science strategy of 2016, which recommended giving the regulator statutory powers to identify and sanction forensic service providers who failed to maintain standards. It is long overdue. While I wish it was going further, I accept that the Bill is a welcome starting point.

I want to put on the record my thanks to Dr Gillian Tully for her years of service in the post, her dedication and commitment and the respect which she has commanded, and for leaving the post of regulator in good shape. I thank the Minister for indicating support from the Government and I look forward to the Bill passing on to its next stage-.

[The Minister for Crime and Policing (Kit Malthouse)]

It is a pleasure to be here, Ms Eagle. I congratulate the hon. Member for Bristol North West on getting the Bill to this stage and on his constructive attitude throughout our discussions and discussions with officials about the amendments. I thank other hon. Members for attending today, particularly my hon. Friend the Member for Bolton West, who previously made a brave attempt at a similar measure, which was sadly foiled by the parliamentary timetable. Nevertheless, here he is to join in the triumph of the hon. Member for Bristol North West.

I do not intend to rehearse the extensive arguments that were made on Second Reading on the Floor of the House. It was a very long debate with a surprising level of interest from Members across the House on a Friday; it was nevertheless helpful and included many tributes to Dr Tully, which I associate myself with again this morning. She has done a great job and her influence here in the Bill is strong. We wish her well for the future.

The Bill is a key part of our plan to ensure that police, prosecution and defence in criminal proceedings are adequately, sustainably and proportionately served by high-quality scientific analysis of the relevant evidence. The Bill will provide the Forensic Science Regulator with statutory powers, which will enable it to issue compliance notices against forensic providers who are failing to meet the required quality standards, and will protect the criminal justice system. Scientifically robust evidence is one of policing’s most important tools for investigating crime. These powers, to be used as a last resort, are necessary and will support the effective delivery of justice and help restore confidence in the criminal justice system.

By your leave, Ms Eagle, I will take the Committee through our amendments, not least because I am conscious we have an audience at home to whom we have a duty to outline what we are doing as we change the law of the land. I do not propose to go through the various clauses, which have been outlined. It is a relatively simple Bill, establishing a relatively simple principle, but there are some amendments to fine-tune the legislation.

Amendment 1 provides that any person who is required to provide information to the Forensic Science Regulator as part of the regulator’s investigations does not breach any obligation of confidence or any other restriction on the disclosure of data, howsoever imposed. Any person who is required to provide information to the regulator may not be required to disclose information in breach of data protection legislation or the Investigatory Powers Act 2016.

Amendment 2 removes the express power for the first tier tribunal to award costs on an appeal against a refusal to issue a completion certificate, as the tribunal’s power to do so is governed by existing legislation.

Amendment 3 enables the recipients of a compliance notice served by the Forensic Science Regulator to bring an appeal to the first tier tribunal against the decision of the regulator. The amendment also sets out the grounds under which a person may bring such an appeal and the remedies that the first tier tribunal may grant. Grounds for an appeal of a compliance notice are that the decision was based on error of fact, the decision was wrong in law, the decision was unreasonable or that any step or prohibition specified in the notice is unreasonable.

Amendments 4 and 5 remove the express power for the first tier tribunal to award costs on an appeal against the refusal to issue a completion certificate, as the tribunal’s power to do so is already governed by existing legislation. It also makes an amendment consequential to amendment 3. Amendment 6 enables the upper tribunal to suspend a compliance notice pending the conclusion of an appeal for the first tier tribunal to the upper tribunal. Amendment 7 enables the regulator to provide assistance relating to forensic science activities carried on in England and Wales to any person, and not just advice, as currently worded. We hope that amendment will remove ambiguity.

Amendment 8 removes the ability of the forensic science regulator to disclose information to another public authority merely because it is relevant to the other authority’s functions. That means that the regulator is empowered to disclose information only where doing so is necessary to enable or assist the other public authority to carry out its functions. This amendment ensures consistency with data protection legislation.

Amendment 9 amends clause 1 so that the Bill does not affect the exercise by any persons other than the regulator of functions in relation to the regulation of forensic science activities. This is to ensure that the duties and powers of other bodies or regulators who oversee scientific activities, such as in the area of forensic pathology, are not affected by any of the provisions of the Bill.

Amendments 10 and 11 modify the short title and long title of the Bill. to reflect the fact that there are no clauses related to biometrics or a biometric strategy within. This is because the Government could not support the biometrics elements that were initially proposed.

The hon. Member for Bristol North West made a good point about the future of police technology. As I think I outlined on Second Reading, the Government have a manifesto commitment to create a framework within which law enforcement can operate as it adopts new and evolving technology in this area, particularly in relation to technologies that could be deemed to be biometrics, data or forensics, for which we have a variety of regulatory regimes at the moment, and about which we need clarity.

In particular, technology that could be deemed by the public to be intrusive needs to have democratic consent. One of the issues that is raised, for example in clause 3, is that the code of practice that the Forensic Science Regulator will put in place has to come to the House and be laid before the House to get expressed consent by affirmative action, and indeed must be approved by the Secretary of State. We are very keen that people know that, where such technologies are used and are developing fast, we as democratically elected politicians have a say and have influence on an ongoing basis. Some of the legislation is about allowing forensics to have the agility to adopt new technology, but I hope and believe that we will be able to bring those measures forward, certainly before the next election, because it is in our manifesto. I hope that we can do so as soon as possible, because technology is racing away from us.

Scientifically robust evidence is one of policing’s most important tools in investigating crime. These powers to be used as a last resort are necessary, and they will support the effective delivery of justice and help to restore confidence in the criminal justice system.

On that note, I urge the Committee to accept amendments 1 to 11 and to agree that clauses 1 to 13 stand part of the Bill.

Forensic Science Regulator Bill

Bambos Charalambous Excerpts

3rd reading
Friday 12th March 2021 Commons Chamber

[Bambos Charalambous (Enfield, Southgate) (Lab)]

I congratulate my hon. Friend the Member for Bristol North West (Darren Jones) on progressing his Bill to Third Reading, and I thank the Minister for his support on behalf of the Government for the Bill’s passage.

The Bill puts the regulator on a statutory footing, to ensure that the standards set by the regulator are met, and if they are not met, the Bill allows for enforcement action to follow. These measures are long overdue and should enhance the integrity of our criminal justice. The Bill is exactly in line with the Government’s forensic science strategy of 2016, which recommended giving the regulator these powers, and the Opposition very much support that. I want to end by putting on record my thanks to Dr Gillian Tully, whose term as the Forensic Science Regulator came to an end recently, for her years of service in the post, her wise counsel and leaving the role in good shape for her successor. We very much support the Bill.