Forensic Science Regulator and Biometrics Strategy Bill

Christopher Chope Excerpts

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

[Sir Christopher Chope (Christchurch) (Con)]

Following up on that point, is it right that the regulator already has problems with codes of practice and conduct? The annual report refers to the fact that there has been a delay in publishing issue 5 of those codes but that it would be published in early 2020. Has it now been published? Why are those non-statutory codes not sufficient?

[Darren Jones]

The regulator has been able to introduce codes of practice, but where they have not been followed, she has not been able to enforce them, which is one of the main issues today. As I understand it, the codes of practice are published in co-ordination with the Home Office, so perhaps the Minister can give an update on the outstanding codes that the hon. Gentleman mentions.

The market’s dependence on large or specialised service providers is not an abstract concern. We know that the resulting fragility, which already existed because of a lack of competition in the market, has had damaging effects on people in the criminal justice system. The collapse of key forensic services in 2018 is a case in point. To manage the fall-out from that collapse, police forces contracted other commercial providers to take on the resulting workload, creating system-wide capacity constraints. The appalling consequences that the Forensic Sciences Regulator laid out show that some cases, where forensic science may have provided valuable information or evidence, could not be processed. In addition, there was evidence of an increased error rate during this period, as well as an unsustainable strain on staff working overtime.

I am sure that all hon. Members agree that that is an unacceptable position for part of the criminal justice system to be in and that we should do our best to try to fix it. At the risk of straying a little beyond the immediate scope of the Bill, I urge Ministers to recognise the systemic issues that such cases highlight. Giving the regulator statutory powers will raise standards but cannot by itself mend a broken market. In the medium-term, the only way to get forensics right is through sustained investment in people, processes and skills.

I am sure that other hon. Members will have examples on which to draw, but the way in which violent sexual crimes are prosecuted makes an especially clear case for why statutory powers are so important. Such crimes, which are subject to unique challenges in obtaining convictions, often rely on DNA evidence as the critical element of a prosecution case. It is therefore vital that the possibility of contamination, for example, at sexual assault referral centres, is minimised as far as possible, yet the regulator’s 2016 annual report highlighted instances of DNA swabs being contaminated through unrelated case handling of different victims on the same day. Clearly, that is unacceptable.

Ensuring adherence to the regulator’s quality standards is a basic precaution, as victims and the general public rightly expect. However, the cost of testing to achieve compliance has meant that the commissioners of affected centres are unlikely to co-operate unless the regulator is empowered to require that. That inadequate incentive structure gets to the heart of why the current soft regulatory model is so weak for existing markets. The regulator’s highest aspiration is to create a competitive climate, in which underperforming or corner-cutting suppliers are unable to acquire contracts.

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[Sir Christopher Chope (Christchurch) (Con)]

What a pleasure it is to follow the hon. Member for Bristol North West (Darren Jones), whom I congratulate on introducing the Bill and addressing this subject following his success in the private Member’s ballot. I am sure we all agree that we want a fine, good-quality forensic service.

The hon. Gentleman made the point that we need the regulator to take action to improve quality. I am sceptical, because we have had a regulator in place since 2007 and it has the powers to bring in codes of practice and, in essence, to encourage, by one method or another, people to comply with those codes. The Bill refers to the introduction of statutory codes of practice that would have to be subject to consultation, but it is not clear to me whether the existing powers have been used sufficiently. It is one thing to say that the regulator has the powers, has been using them and has not been able to make them work so needs them to be put on a statutory footing, but is not clear to me that the existing regulator has been using the available non-statutory powers.

Let me give an example. In her annual report, the forensic science regulator says, in paragraph 2.1 on compliance with the regulator’s codes of practice and conduct:

“The number of organisations that have demonstrated compliance with the Codes has now risen to 42. This leaves approximately 17 organisations in England & Wales that hold accreditation to ISO 17025 but not the Codes and are regularly practising forensic science in the CJS”—

the criminal justice system.

She goes on:

“Of these, 12 are in policing”.

The Home Office, which funds the regulator, also funds the police service. If the Home Office talks to the regulator, why has the Home Office not been successful in persuading 12 police organisations to comply with the codes prepared by the regulator? I do not understand what is going on. I hope that when the Minister responds he will explain why there is this dichotomy: the Government say that they support the Bill because we need a statutory regulator, but at the same time they seem to have been doing nothing to try to bring the recalcitrant police forces into compliance.

[Kit Malthouse]

My hon. Friend is raising an important point, but there are two things to say. Part of the complication is obviously the operational independence of chief constables, in that the Home Office cannot bring any direct sanction to bear where something falls within their ambit, and as this issue does. However, as a strong champion of the authority and importance of this House, he will also know that transposing regulations into law has had enormous effect in the past. Back in, I think, March 2019, this House passed a statutory instrument on fingerprinting and DNA standards that took us from 9% compliance to 90% across police forces. That illustrates the power that he has from the Back Benches to mandate that kind of action across the country.

[Sir Christopher Chope]

I am fascinated by my hon. Friend’s response. The chief constable of Dorset is the lead chief constable on this very subject. Perhaps following today’s debate I will be able to have a conversation with him on this matter; but I still despair, really, that it is necessary for this House to intervene to get the police to do what we and an independent regulator think is the right thing for them to do.

[Chris Green]

Does my hon. Friend share my concern that spending on the forensics sector decreased, from memory, from about £120 million a year in 2008, or thereabouts, to about £50 million to £55 million a year over a 10-year period? That is a judgment that police forces have to take, but we have to consider the wider financial constraints that they face.

[Sir Christopher Chope]

Obviously police forces face constraints, but ensuring that the best quality forensic evidence is presented in the court system should be the top priority. Why should that be relegated as a lesser priority? My view would therefore be: yes, it is very important, but chief constables should be addressing that issue.

I am slightly sceptical about the need for this Bill, and my scepticism was increased when I looked at the regulator’s annual report and saw that her budget, supplied by the Home Office, runs to only about £400,000 in total admin expenditure for a year. What will be the costs of this legislation, which the Minister is supporting? We are now told in the explanatory notes that it will add about £400,000 a year to the costs of the Home Office, so the admin budget for the forensic regulator would be doubled. How does that compare with the estimate given when my hon. Friend the Member Bolton West (Chris Green) introduced his Bill in the 2017-19 Session? The explanatory notes for that Bill said:

“An impact assessment has been conducted by the Home Office. The Home Office estimates that the statutory powers of the Regulator will cost an average of £100,000 per year in addition”.

How is it that in the space of just two years the Home Office’s estimate of the cost of this legislation has quadrupled? And how, on that basis, can we rely on any of its promises about what the costs will be? I do not know whether in due course we will have a separate debate on the financial side of this Bill—I imagine that we would need a money resolution—but perhaps my hon. Friend the Minister can answer that point now.

[Kit Malthouse]

I think my hon. Friend has missed his calling: his forensic examination of these documents is to be admired. During the course of the debate I will seek an answer to the question that he raises; I do not have it at the moment. In response to an earlier point that he raised, it is not just the police who are the users of forensic services; very often defence will use them. Having a consistent regulatory environment that is observed by all means that we will get greater consistency in courts, and therefore there will presumably be less time lost—and a saving—in trials that are broken, cracked or have to be delayed because of differences in forensic evidence.

[Mr Speaker]

Just to say the hon. Gentleman’s calling is Friday.

[Sir Christopher Chope]

I am very grateful to my hon. Friend, and I look forward to hearing the outcome of his further enquiries. His strategy seems to be to supress my scepticism by using charm and flattery, which I am sure are important weapons in his armoury.

I am conscious that lots of people want to participate in this debate. I hope we will be able to get on to some of the later debates on the Order Paper, so having expressed some of my scepticism, I will now sit down.