Forensic Science Regulator and Biometrics Strategy Bill

Darren Jones Excerpts

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

[The Chair]

With this it will be convenient to discuss the following:

Clauses 2 to 4 stand part.

Amendment 1, in clause 5, page 3, line 10, at end insert—

“(6A) A disclosure of information pursuant to a requirement under subsection (3) does not breach—

(a) any obligation of confidence owed by the person making the disclosure, or

(b) any other restriction on the disclosure of information (however imposed).

(6B) A person may not be required under subsection (3) to disclose information if to do so—

(a) would contravene the data protection legislation (but in determining whether the disclosure would do so, the duty imposed by virtue of that subsection is to be taken into account), or

(b) would be prohibited by any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory Powers Act 2016.

(6C) In subsection (6B)(a) “the data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3(9) of that Act).”

This amendment has the effect that a person who is required to provide information to the Forensic Science Regulator does not breach any restriction on disclosure in doing so, but may not be required to disclose information in breach of the data protection legislation or the Investigatory Powers Act 2016.

Clause 5 stand part.

Clauses 6 and 7 stand part.

Amendment 2, in clause 8, page 4, line 31, leave out paragraph (e).

This amendment removes the express power for the First-tier Tribunal to award costs on an appeal under clause 8(1) as the Tribunal’s power to do so is governed by existing legislation.

Amendment 3, in clause 8, page 4, line 31, at end insert—

“(3A) A person given notice under section 6(8) of the variation of a compliance notice may appeal to the First-tier Tribunal against the decision to vary the compliance notice.

(3B) The grounds for an appeal under subsection (3A) are that—

(a) the decision was based on an error of fact;

(b) the decision was wrong in law;

(c) the decision was unreasonable;

(d) any step or prohibition specified in the compliance notice as a result of the variation is unreasonable.

(3C) On an appeal under subsection (3A) the First-tier Tribunal may—

(a) confirm the decision to vary the compliance notice, in whole or in part;

(b) quash that decision, in whole or in part;

(c) vary the compliance notice in a different way;

(d) remit to the Regulator the decision whether to vary the compliance notice.”

This amendment enables a person on whom a compliance notice is served by the Forensic Science Regulator to bring an appeal to the First-tier Tribunal against a decision by the Regulator to vary the notice.

Amendment 4, in clause 8, page 4, line 41, leave out paragraph (d).

This amendment removes the express power for the First-tier Tribunal to award costs on an appeal under clause 8(4) as the Tribunal’s power to do so is governed by existing legislation.

Amendment 5, in clause 8, page 5, line 1, after “(1)” insert “, (3A)”.

This amendment is consequential on Amendment 3.

Amendment 6, in clause 8, page 5, line 3, at end insert—

“(8) Where an appeal is or may be made to the Upper Tribunal in relation to a decision of the First-tier Tribunal under this section, the Upper Tribunal may suspend any requirement or prohibition specified in the compliance notice until the appeal is determined, withdrawn or abandoned.”

This amendment enables the Upper Tribunal to suspend a requirement or prohibition in a compliance notice where a person appeals against a decision of the First-tier Tribunal under clause 8.

Clause 8 stand part.

Amendment 7, in clause 9, page 5, line 7, after “advice” insert “or assistance”.

This amendment enables the Forensic Science Regulator to provide assistance relating to forensic science activities carried on in England and Wales to any person.

Clause 9 stand part.

Amendment 8, in clause 10, page 5, line 31, leave out from “functions” to end of line 33.

This amendment 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.

Clause 10 stand part.

Government amendment 9, in clause 11, page 6, line 29, at end insert—

“(4) Nothing in this Act affects the exercise by any person other than the Regulator of functions in relation to the regulation of forensic science activities.”

This amendment provides that the Bill does not affect the exercise by any person other than the Forensic Science Regulator of functions in relation to the regulation of forensic science activities.

Clause 11 stand part.

Clause 12 stand part.

Government amendment 10, in clause 13, page 7, line 22, leave out “and Biometrics Strategy”.

This amendment has the effect of modifying the short title of the Bill to reflect the fact that the Bill does not deal with biometrics strategies.

Clause 13 stand part.

That the schedule be the Schedule to the Bill.

Government amendment 11, in the title, line 2, leave out from “science;” to “and” in line 4.

This amendment modifies the long title of the Bill to reflect the fact that the Bill does not deal with biometrics strategies.

[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.

[Darren Jones]

I have nothing further to add, Ms Eagle.

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

[The Chair]

We now come to formal decisions on the remaining clauses and amendments, which have already been debated. I will still need the Minister to move the amendments formally when we get to them. With the leave of the Committee, I intend to put single questions on consecutive clauses and amendments where possible.

Clauses 2 to 4 ordered to stand part of the Bill.

Clause 5

Investigations by the Regulator

Amendment made: 1, in clause 5, page 3, line 10, at end insert—

‘(6A) A disclosure of information pursuant to a requirement under subsection (3) does not breach—

(a) any obligation of confidence owed by the person making the disclosure, or

(b) any other restriction on the disclosure of information (however imposed).

(6B) A person may not be required under subsection (3) to disclose information if to do so—

(a) would contravene the data protection legislation (but in determining whether the disclosure would do so, the duty imposed by virtue of that subsection is to be taken into account), or

(b) would be prohibited by any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory Powers Act 2016.

(6C) In subsection (6B)(a) “the data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3(9) of that Act).”

This amendment has the effect that a person who is required to provide information to the Forensic Science Regulator does not breach any restriction on disclosure in doing so, but may not be required to disclose information in breach of the data protection legislation or the Investigatory Powers Act 2016.—(Kit Malthouse.)

Clause 5, as amended, ordered to stand part of the Bill.

Clauses 6 and 7 ordered to stand part of the Bill.

Clause 8

Appeals

Amendments made: 2, in clause 8, page 4, line 31, leave out paragraph (e)

This amendment removes the express power for the First-tier Tribunal to award costs on an appeal under clause 8(1) as the Tribunal’s power to do so is governed by existing legislation.

Amendment 3, in clause 8, page 4, line 31, at end insert—

‘(3A) A person given notice under section 6(8) of the variation of a compliance notice may appeal to the First-tier Tribunal against the decision to vary the compliance notice.

(3B) The grounds for an appeal under subsection (3A) are that—

(a) the decision was based on an error of fact;

(b) the decision was wrong in law;

(c) the decision was unreasonable;

(d) any step or prohibition specified in the compliance notice as a result of the variation is unreasonable.

(3C) On an appeal under subsection (3A) the First-tier Tribunal may—

(a) confirm the decision to vary the compliance notice, in whole or in part;

(b) quash that decision, in whole or in part;

(c) vary the compliance notice in a different way;

(d) remit to the Regulator the decision whether to vary the compliance notice.”

This amendment enables a person on whom a compliance notice is served by the Forensic Science Regulator to bring an appeal to the First-tier Tribunal against a decision by the Regulator to vary the notice.

Amendment 4, in clause 8, page 4, line 41, leave out paragraph (d)

This amendment removes the express power for the First-tier Tribunal to award costs on an appeal under clause 8(4) as the Tribunal’s power to do so is governed by existing legislation.

Amendment 5, in clause 8, page 5, line 1, after “(1)” insert “, (3A)”

This amendment is consequential on Amendment 3.

Amendment 6, in clause 8, page 5, line 3, at end insert—

‘(8) Where an appeal is or may be made to the Upper Tribunal in relation to a decision of the First-tier Tribunal under this section, the Upper Tribunal may suspend any requirement or prohibition specified in the compliance notice until the appeal is determined, withdrawn or abandoned.”—(Kit Malthouse.)

This amendment enables the Upper Tribunal to suspend a requirement or prohibition in a compliance notice where a person appeals against a decision of the First-tier Tribunal under clause 8.

Clause 8, as amended, ordered to stand part of the Bill.

Clause 9

Other functions of the Regulator

Amendment made: 7, in clause 9, page 5, line 7, after “advice” insert “or assistance”.—(Kit Malthouse.)

This amendment enables the Forensic Science Regulator to provide assistance relating to forensic science activities carried on in England and Wales to any person.

Clause 9, as amended, ordered to stand part of the Bill.

Clause 10

Disclosure by the Regulator

Amendment made: 8, in clause 10, page 5, line 31, leave out from “functions” to end of line 33.—(Kit Malthouse.)

This amendment 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.

Clause 10, as amended, ordered to stand part of the Bill.

Clause 11

Meaning of “forensic science activity”

Amendment made: 9, in clause 11, page 6, line 29, at end insert—

“(4) Nothing in this Act affects the exercise by any person other than the Regulator of functions in relation to the regulation of forensic science activities.”—(Kit Malthouse.)

This amendment provides that the Bill does not affect the exercise by any person other than the Forensic Science Regulator of functions in relation to the regulation of forensic science activities.

Clause 11, as amended, ordered to stand part of the Bill.

Clause 12 ordered to stand part of the Bill.

Clause 13

Extent, commencement and short title

Amendment made: 10, in clause 13, page 7, line 22, leave out “and Biometrics Strategy”.—(Kit Malthouse.)

This amendment has the effect of modifying the short title of the Bill to reflect the fact that the Bill does not deal with biometrics strategies.

Clause 13, as amended, ordered to stand part of the Bill.

Schedule agreed to.

Title

Amendment made: 11, in title, line 2, leave out from “science;” to “and” in line 4.—(Kit Malthouse.)

This amendment modifies the long title of the Bill to reflect the fact that the Bill does not deal with biometrics strategies.

Bill, as amended, to be reported.