Forensic Science Regulator and Biometrics Strategy Bill

Debate between Darren Jones and Kit Malthouse

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

[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.

Forensic Science Regulator and Biometrics Strategy Bill

Debate between Darren Jones and Kit Malthouse

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

[Darren Jones]

I could not agree more with the hon. Gentleman. I am pleased to see him in the Chamber today, given his previous valiant efforts to try to secure a similar outcome in the previous Parliament. He makes an important point in respect of digital forensics, which, we know from the evidence reported to us in the House, has been in increasing demand, given the nature and complexity of modern crimes. There also seems to be a lack of expertise, skills and capacity to deal with that. There have been incidences reported in the media where victims have, for example, had all their data on their mobile phones downloaded at the point at which they have reported a crime. There are pretty significant questions about whether that is the right balance and approach: what the framework is around that, what happens with all that data going forward and whether that is the right approach to take. That, of course, comes to the questions around accredited standards for digital forensics.

With the market dominated by a few large players, and niche processes or specialised capabilities often, in practice, offered by a single small provider, the cost of achieving and retaining certification is frequently seen as a greater impediment to competitiveness than the ability to demonstrate the quality of their work. With the majority of affected forensic work conducted in-house, the absence of statutory regulation has meant that police forces themselves have come to the view that accreditation is a low priority for time and investment. Statutory regulation would therefore enable a path to competition on the basis of quality and encourage new providers to enter the market. Police authorities would not only be more accountable for the procurement decisions they make but better able to make the case to the Government for investment to enable funding safe, high-quality forensics.

I do not wish to present the Bill today as a panacea, but that kind of regulatory environment should be the baseline for a competitive market in services as publicly important as these. That aspiration is key, because although there is ample cause to regret that manner in which the forensic science service was shut down, the Bill seeks to improve and build on the marketised approach as it exists today, rather than seeking to turn back the clock. That is why making this change commands, in my view, such universal expert and political consensus.

In what form, then, could objections possibly be taken? I am conscious that a small minority of practitioners, for example, have previously expressed concern that a statutory regulator would mean essentially sound practices being invalidated on technicalities and leave robust prosecutions open to unfounded but seemingly credible defence challenges, but that is emphatically not a risk created by this proposed legislation. The enforcement and investigatory powers it seeks to create are not directly rooted in compliance with quality standards but justified by substantial risk that the course of justice will be prejudiced by reliance on the science conducted by these practitioners. As such, the only providers with a meaningful basis for concern are those whose work entails risk of that order. Most providers take the rules and codes of practice that govern their work, and the sense of public duty that comes with it, extremely seriously. Only a minority of bad actors have anything to fear from a system that begins with the aim of rewarding quality work done in good faith.

The same essential need for intelligent, enforceable and responsive regulation underpins the case for action to address the increasingly widespread collection, storage and use of biometric data. As I have already said today, the title of the Bill offers some clue to my initial aspirations on that front, but I take the Minister and the Government at their word that solutions are en route. They need to be, in my view, because this is an area in which it is even clearer that innovations and technology will consistently outpace the capacities of primary legislation and where current law leaves an intolerable vacuum for the abuse of new and developing biometrics.

In that context, and very briefly today, I would like to draw colleagues’ attention to the independent review of the governance of biometric data commissioned by the Ada Lovelace Institute, which I understand is due to report its conclusions next month. The findings, I suggest, would represent one of the most authoritative contributions to the debate on how we govern biometrics, and I hope Ministers will take full account of them.

The general data protection regulation defines biometric data in fairly bloodless terms as the information that results from

“processing relating to the physical, physiological or behavioural characteristics of a natural person, which allow or confirm the unique identification of that natural person, such as facial images”.

Some of the processes we are talking about, such as fingerprinting, are well established and the limits on their use well defined, but the potential for abuse created by the speed with which technologies for processing other kinds of biometric data are advancing should make clear the need for political oversight to keep up.

Clearly, that does not begin and end with, for example, automatic facial recognition, but the worry that the technology simply is not ready for roll-out has been debated on the Floor of the House in the past.

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

I wish to acknowledge the hon. Gentleman’s strong point that technology is moving at great speed in crime, as it is in all our lives, and to draw his attention to the fact that we were the only party that stood on a manifesto commitment—it was buried in our manifesto at the general election—to create exactly the robust legal framework to which he refers. I am hopeful that we will get movement on that quite soon.

[Darren Jones]

I am pleased to hear that from the Minister. I confess that I did not notice that in his party’s manifesto, but on the basis of his confirmation to the House, I look forward to the tabling of comprehensive legislation. I can confirm to the House that, although it may not have been in our manifesto under the previous Labour party leadership, I will do my best to ensure that it is in the next one.

I believe the Minister when he says that he wants to get this right, and the Government will have a partner in me when they get around to it, but time is of the essence. I sorely hope that the Bill fires the starting gun today on a period of revitalised thinking in the Government about how to regulate technologies in the public interest. I want to be a participant in that effort.

The Bill is as evidence-driven and task-focused a piece of legislation as it could be. Putting the regulator in statute is a matter of broad political consensus. As I have said today, on a cross-party basis in both this House and the other House, and among experts in the field, the regulator and, indeed, the Minister and the Government, there is consensus that the Bill should be given its Second Reading today. It will make good on a commitment, first made by the Government in 2013, that the regulator says is necessary if it is to do its job effectively. Finally, it will create a basis of quality enforcement, on which we can build a better-functioning market, and is plainly the right thing to do. On that basis, I commend my Bill to the House.

--- Later in debate ---

[Darren Jones]

To give the hon. Gentleman a little comfort, the case that he makes will in fact be resolved by this Bill. The issue we have today is that when evidence is presented, the defence can say that it came from a provider that is not accredited compared with a provider that is accredited, because there is a lack of standardisation. The Bill, in enforcing standards, will mean that the very question being put to the jury is resolved because all providers will be accredited as opposed to some versus others.

[Kit Malthouse]

rose—

Automated Facial Recognition Surveillance

Debate between Darren Jones and Kit Malthouse

Monday 27th January 2020 Commons Chamber

[Kit Malthouse]

My hon. Friend highlights an extremely important opportunity for us. As he quite rightly points out, many, many people go missing every year. Some people want to disappear for various reasons, but, often, young people do not want to do so. Where it is proportionate, necessary and in line with the code, the identification of missing vulnerable people, particularly young people, would certainly be an incredibly good use of the technology.

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

I welcome you to your place, Madam Deputy Speaker. I have not yet had the chance to congratulate you on your new role.

In the previous Parliament, the Science and Technology Committee looked at this issue as part of the biometrics and forensics strategy review. All of the key stakeholders recognised that a biometrics strategy that was not fit for purpose and not of the quality required to provide a regulatory framework for facial recognition technology was at the root of the issue. Can the Minister confirm whether that strategy has been updated since last April?

[Kit Malthouse]

The hon. Gentleman is quite right to raise concerns about the framework, and I will have to get back to him on whether the strategy has been updated. I do not think that it has, but I will check and make sure. He will be pleased to know that, at the recent general election, the Conservative party manifesto did contain a commitment that, while we wanted the police to use the ever-increasing capabilities that technology was presenting to them, we wanted them to do so within a strict legal framework. We will be giving consideration over the months to come about what form that will take.