Forensic Science Regulator and Biometrics Strategy Bill

Debate between Darren Jones and Bambos Charalambous

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.

Hospitality Sector: Tipping

Debate between Darren Jones and Bambos Charalambous

Wednesday 7th March 2018 Westminster Hall

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

I beg to move,

That this House has considered the regulation of tipping practices in the hospitality sector.

It is a pleasure to serve under your chairmanship, Sir Roger.

A few months ago, a local newspaper in Bristol, the Bristol Post, exposed a tipping practice at a local chain of restaurants called Aqua Italia that involved managers levying a 3% charge on all table orders regardless of tips received. In practice, that meant that waiters and waitresses could, on occasion, be asked to go to the cashpoint after their shift to withdraw their own money to pay the levy to their employers, even if they did not have any tips themselves. Those funds were then recycled to help pay the wage bill—in essence, charging workers to work.

Amazingly, I am told that that is apparently legal—that is, if, in a reference period, such as a weekly pay period, the average hourly wage after deductions does not fall below the national minimum wage, it is legal, but if it does fall below the national minimum wage, it is not. That is because there are no useful laws on the regulation of tips in the hospitality sector or, as in the case of Aqua Italia, on charging workers to work. Enforcement can happen only if it is related to the national minimum wage. That seems an enormous loophole that should be closed, because this is an issue not only at Aqua Italia. As the BBC “Inside Out West” investigatory team found in its documentary, it has been happening at other restaurants too, including the national chain Turtle Bay, which has a restaurant in Bristol.

The offensive practice of charging workers to work and the exploitation of low-paid hospitality workers through an abuse of power in the use of tips is not new news. In 2015, it became clear that Turtle Bay—again—as well as Jamie’s Italian, Wahaca, Gaucho and Las Iguanas were taking the same approach with their staff, yet while many of them changed their policy in the face of public pressure at that time, to my knowledge Turtle Bay chose not to. The Bristol Post reports that Turtle Bay has franchised this policy to other restaurants it is involved with, such as Aqua Italia. The fact of the matter is that laws need to be in place, because even in the face of public pressure some restaurant owners decided to ignore it and carry on regardless.

Following those issues, the Cameron Government undertook a consultation on how to reform the regulations surrounding the use of tips in the hospitality sector. Three years on, to my knowledge, nothing has happened with that consultation or its output, even though hon. Friends such as my hon. Friend the Member for Walthamstow (Stella Creasy) have tabled amendments and had meetings with previous Ministers on the issue. The consultation sought to do two things: make it clear to customers what happens to the tips they give and ensure that staff get a fair share of those tips.

Some restaurants charge an administration fee on tips to cover the costs of the card transaction when someone tips with a card payment instead of cash. That sounds perfectly reasonable, but the administration fee can sometimes be as high as 16%, when the real cost of the transaction to the card payment company is somewhere between 0.2% and 0.9%. For workers who earn, on average, £7.71 an hour, that is again entirely unacceptable and an imbalance of power, given that waiting staff have no power to change it.

The question must be what Government should do about that. In my view, it is quite simple: the law should make it clear that workers get to keep 100% of their tips, and in circumstances where there are card payments to facilitate that tipping, the at-cost use of that machine could rightly be passed on, but at the cost the restaurant is charged, not at a higher cost so that the restaurant takes a further share of those waiters’ tips.

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

On that point, the percentage that appears on a bill in a restaurant is sometimes classified as a tip, not an administrative charge. I am not aware that that is regularly passed on to the staff who carry out the service. Does my hon. Friend agree that there needs to be greater clarity to ensure that the staff get the amount that is warranted for the service they provide?

[Darren Jones]

My hon. Friend is absolutely right. Going to the heart of the original consultation on this matter, there are two edges to that sword. One is that workers need to be getting the tips that customers feel are being given as tips, but the other is that customers need to understand what is happening with those tips. Often, when we pay bills in restaurants, that is in very small fine print and there is different use of language about administration charges and service charges. Some people do not know whether they are discretionary, and ultimately they do not know whether the tips go through to the staff who have provided them with an excellent service and whom they wish to tip. I hope the Government’s response today will pick up on some of those points from the consultation, and I look forward to hearing from the Minister on that point.

As with everything else, technology is changing the situation. One of my constituents in Bristol North West was recently in touch; she has started a company called Tip Tap, a mobile phone app that will allow diners to give their tips directly to the waiter. They can pay the bill to the restaurant, the waiter will get out their app and then they can pay the tip to the waiter directly. That seems an example of a good solution, but I still do not quite understand why restaurant owners and others feel it is a particular hassle to facilitate that process for their workers, who are often the lowest-paid in those businesses—as I say, on average, they earn only around £7.71 an hour.

This is a simplistic debate; I think waiters and waitresses should get 100% of their tips. If the Government disagree with me on that approach, I would welcome a commitment at the very least to revive the consultation from the ashes of the previous Parliament, respond to the submissions to that consultation and set out how they would seek to achieve those two objectives—customers to know where their tips are going and waiters and waitresses to get a fair share of those tips.

I hope that in seeking to achieve simplicity in regulation, processes, policies, technical solutions and billing systems, we could quickly move to the position that says, “But for passed-through at-cost administration charges, waiting staff get 100% of their tips.” That seems to me a simple solution that would close this legal loophole, where no laws exist today, so restaurateurs can get away with it by relying on national minimum wage law. It would stop the exploitation of low-paid workers in Bristol and right across the country. I look forward to hearing the Minister’s response.