Biometrics Commissioner and Forensic Science Regulator

Rupa Huq Excerpts

Thursday 20th January 2022 Westminster Hall

[Dr Rupa Huq (in the Chair)]

Before we begin, I remind Members that they are expected to wear face coverings when they are not speaking in the debate, in line with current Government guidance—although hasn’t that changed again overnight? Never mind—and that of the House of Commission. I am not, because I may be required to speak at any moment. I also remind Members that they are asked by the House to have a covid lateral flow test twice a week before coming on to the estate. They can do so downstairs: I did so the other day, and they gave me a pack of six for the future as well. Please also give each other and members of staff space when seated, and when entering and leaving the room.

[Greg Clark (Tunbridge Wells) (Con)]

I beg to move,

That this House has considered the Nineteenth Report of the Science and Technology Committee, Session 2017-19, The work of the Biometrics Commissioner and the Forensic Science Regulator, HC 1970, and the Government Response, Session 2019-21, HC 1319.

It is a pleasure to serve under your chairmanship, Dr Huq. I am grateful to the Liaison Committee for allocating time for this issue to be debated. I also acknowledge the role of the predecessor Science and Technology Committees—some Members who will speak in this debate served on those predecessor Committees, and I pay tribute to their assiduity and tenacity in keeping a focus on this subject—ably assisted by a succession of brilliant Clerks, who continue to this day in the shape of Mr Ben Shave, one of the Clerks who is advising the Committee on these matters.

The issues covered by my Committee and its predecessors are of considerable complexity, but also great importance. The global value of biometrics is expected to reach £21 billion this year, a 130% increase compared with 2016. The perceived vulnerability of passwords, the growing prevalence of mobile devices with biometric capabilities, and wider advances in computing technologies all point to biometrics and forensics playing a greater role in public and private life. In the UK, biometric data obtained via technologies that capture, measure, analyse and process digital representations of our physical or behavioural traits, such as DNA, fingerprints, voice and handwriting, are held by the police on no fewer than four separate databases, while criminal investigations have long relied on the services of private sector and in-house forensic science laboratories.

As I said, the Science and Technology Committee and its predecessors have published a number of reports on forensic science—specifically in 2011, 2013, 2016, 2018 and 2019—and on biometrics in 2015 and 2018. Our sister Committee in the House of Lords has also undertaken a detailed examination of the use of forensic science in the criminal justice system over the course of almost a year. In 2018, our immediate predecessor Committee called on the Government to give statutory powers to the Forensic Science Regulator, a recommendation that—thanks to a private Member’s Bill tabled by my fellow Select Committee Chair and a former member of the Committee, the hon. Member for Bristol North West (Darren Jones)—has now been implemented. We place on record our gratitude to him for his achievement in securing that legislation.

We also said that the Government should strengthen the auditing of standards of compliance; deliver a planned IT upgrade that would fully implement an automatic custody image deletion system for those not convicted of any crime; and ensure that any wider deployment of facial recognition technology is not considered an operational decision for the police but is a matter for Parliament to decide. We said that the treatment of how image databases should be managed and regulated should be subject to similar scrutiny.

Shortly after that 2018 report was published, the Government published their biometrics strategy, which committed to enabling

“more efficient review and automatic deletion of custody images by linking them to conviction status, more closely replicating the arrangements for fingerprints and DNA”.

However, it did not mention the important matter of the accreditation of police laboratories. In a follow-up report, published in 2019, our predecessor Committee concluded that concerns remained about the long-term viability of the market for forensic science services and highlighted the significant risk that that posed to the effective functioning of a criminal justice system. Other recurring concerns raised in that report included gaps in current forensics research, the absence of a mechanism to set clear national research priorities, insufficient oversight of biometric technology, and a lack of scientifically rigorous testing of new biometric technologies. That Committee also expressed worries about the effectiveness and potential bias of facial recognition technologies.

In the 20 months between the publication of that report and the Government response—it is worth noting that 20 months is an unconscionably long time for the Government to take to respond to a detailed and specific set of recommendations—the passage of the Forensic Science Regulator Act 2021 gave the regulator new, statutory powers, so our Committee invited the former regulator, the former biometrics commissioner and relevant Ministers, including my right hon. Friend the Minister for Crime and Policing, to seek their views on where things stood in June of last year.

Professor Gillian Tully, the former forensic science regulator, told us that at the time of her departure, in February 2021,

“neither toxicology nor digital forensics had sufficient capacity to meet the current needs of the service.”

That shortfall in capacity has real-world consequences. Professor Tully spoke of cases that rested on the accusation that an individual was, for example, driving while under the influence of drugs, and cases that she was familiar with had to be dropped. It may not have been a large number, and prioritisation on the part of individual police forces may have also been a factor, but her testimony is worrying nevertheless, at the time when advances in toxicology and forensic science more generally should be playing a greater role in securing convictions. Indeed, in a conversation with a person with current knowledge of the system, I was given to understand that we have only 30 qualified toxicologists operating in the United Kingdom. That is an extraordinary number, considering the weight of responsibility that rests on their shoulders.

In his appearance before our Committee, the Minister acknowledged that he, too, was concerned about capacity, and I know this from conversations separately. He committed to looking urgently at how to stimulate more forensic toxicologists to join the profession. Part of the purpose of today’s debate is to seek from the Minister an update on how that is going and whether the intention is being translated into practice. On digital forensics, we heard about mobile devices and computers sitting in very long queues for analysis, and that convictions that might have been made if there were greater integrity to the laboratory accreditation process have been lost.

Such concerns relate not only to forensics but to biometrics. Professor Paul Wiles, the former commissioner for the retention and use of biometric material—the biometrics commissioner—highlighted four concerns. First, the existing framework governing the use of biometrics by our police forces had not kept pace with developments in biometric technologies, and the Government had not responded to domestic and European Court of Human Rights judgments about the framework. Secondly, the police, the Home Office or some combination of the two had yet to create a proper evidence base for the use of new biometrics, which could complicate the decision-making process around future deployments. Thirdly, the Home Office has yet to update databases containing both biometric data and more general information relating to offenders, convictions and arrests. Finally, Professor Wiles argued that biometrics, together with artificial intelligence and large databases, are the technologies that, at least in part, will drive the future social world in which we live, and their use should therefore be considered a key strategic issue across Government. For a Government who have made a signal commitment to improving conviction rates and protecting society to fail to make use of stunning advances that can help to secure convictions and put into jail people from whom society should be protected is a serious omission.

Professor Wiles also specified several areas where he thought elected Members of Parliament should decide what was not in the public interest. Facial recognition technology is a case in point, as well as the fingerprints we use to log into our phones, and a plethora of applications including voice recognition and gait analysis.

I do not want to give the impression that we were told that the use of all these technologies falls on the negative side of the register—that the advances they comprise are not good for society. That would be the wrong impression. Professor Wiles highlighted the idea of frictionless airports and their potential for eliminating the onerous barrier checks that have come in in response to the terrorism threats of recent years. Advances in technology might allow some relief there, which would be very much in the public interest. However, the point that he and others have made is that the rules need to be clear, there needs to be a co-ordinated cross-Government approach when it comes to formulating those rules, and that we should not delay doing so.

That brings me to the response from the Government to our predecessor Committee’s 2019 report, and the work that has been undertaken since then. I am sure the hon. Member for Blackley and Broughton (Graham Stringer) will cover the report in his contribution, as will the hon. Member for Glasgow North West (Carol Monaghan). From my perspective, the key takeaway of our Committee session that questioned the Minister and his colleague Baroness Williams, the Minister for Countering Extremism, is that, although some progress has been made, it does not stand comparison with the progress that should have been made, and the opportunities to protect society from the advances in technology that are available. It was clear to me from the session that the outstanding issues need to be addressed and the pace of action needs to be accelerated.

Several areas require scrutiny in the weeks and months ahead. As of July 2021, 16 of the 43 police forces in England and Wales have joined the Forensic Capability Network, although the Government anticipate that the number will have risen by the time powers in the Forensic Science Regulator Act are fully taken up by the new regulator. Will the Minister update us on the current number of forces that have joined the network?

On a related point, we remain concerned that without the disclosure of data on accreditation and compliance, the Home Office will not be able to evaluate the success of the Forensic Capability Network, or the transforming forensics programme that was launched in 2017. Will the Minister update us on the Government’s plans for measuring the success of the new regime in driving accreditation and compliance? Has the case for a single system of accreditation for both police and private laboratories been considered?

The Government have encouraged some collective decision making through these two initiatives, but in our June 2021 session Professor Tully suggested that attempts to

“work through persuasion rather than any form of mandate”

have now run their course. She stated clearly that there are some areas on which there should be national decision making, even if that results in reversing some decisions that were been taken by previous Ministers and Administrations, whatever good faith and optimism was vested in those decisions at the time. However, the Government have confirmed that there are no plans to establish a new decision-making body specifically for forensic science, citing ongoing work taking place in the Home Office and UK Research and Innovation as a better avenue for determining future priorities and ensuring that capacity grows. I would be grateful for an update from the Minister on this work. What might persuade the Government to revisit the muscular approach the Home Office is taking to this important matter?

In short, the picture is mixed. Some progress is being made, but not nearly enough considering the clarity of what was set out as being needed and the available opportunities. The Police, Crime, Sentencing and Courts Bill, which is being considered in the House of Lords, and forthcoming College of Policing guidance on the use of facial recognition will provide opportunities to strengthen these matters. It will be helpful to hear from the Minister what assessment he has made of the contribution they will make. The Minister’s latest update to the Committee did not contain a publication date for the guidance; can he offer one today, so that we know where police forces stand on facial recognition technology?

There are several other areas I would like an update on. First, on biometrics governance and updates to the framework, the Committee was told in September 2021, following the Court of Appeal judgment in Bridges v. South Wales Police, that the Government were updating the surveillance camera code accordingly and consulting the relevant organisations set out in the governing legislation, including police, local authorities, the Information Commissioner’s Office and the biometrics and surveillance camera commissioner. A revised code of practice was promised towards the end of 2021. We have now passed that date. When can we expect that to be issued?

Secondly, on the timeline for the new automatic deletion system for custody images, the 2024 deadline is approaching. I hope the Minister can update us on the interim steps being taken by the Government. Thirdly, the custody image review has been absorbed into the wider piece of work to implement the Government’s manifesto commitment to empower the police to use new technologies such as biometrics and including facial images within a strict legal framework. Can the Minister confirm what progress is being made on delivering against that manifesto commitment?

I mentioned that the Science and Technology Committee first examined these complex questions in 2011. More than a decade on, our interest in them is undiminished. The developments in technology cause us to commit to taking a close interest in the responses of the Minister today and in the months and years ahead. I urge the Government to have the same sense of determination and purpose in order to achieve the breakthrough in police practice and regulation that the technologies allow.

[Graham Stringer (Blackley and Broughton) (Lab)]

It is a pleasure to serve under your chairship, Dr Huq. It is also a pleasure to serve on the Science and Technology Committee under the chairship of the right hon. Member for Tunbridge Wells (Greg Clark). I associate myself with his questions and the general points that he made, with one exception. The history of the Science and Technology Committee looking at forensic science goes back even further than he set out. I have been on the Committee a long time, but the first report on the subject came out before I joined it. Called “Forensic science on trial”, the report was published on 29 March 2005. The right hon. Gentleman referred to issues that have been examined repeatedly by the Committee—these are not my speaking notes, Dr Huq—but not to all the reports and the responses of the Government that have been produced on this issue.

The “Forensic Science on Trial” report went through the even longer history of forensic science. The way in which the Home Office has responded over time to the changing science is interesting and relevant. Science and the ability to examine and get information from crime scenes have changed enormously over time. It was only in 1988 that DNA led to the conviction of the double murderer Colin Pitchfork. Since then, DNA has been used thousands of times for many different crime scenes.

What worried the Committee then was that there had been big changes. Back in the early 90s, police forces went along to the people who did forensic science and asked for analysis of things from a crime scene, and they got it with no cost. The then Home Secretary, the noble Lord Blunkett, thought that there should be a more commercial relationship between the Forensic Science Service and police forces, and that the Forensic Science Service should be moved into a public-private partnership body. The Science and Technology Committee looked at that proposal and said that things would be lost if the service was changed in that way. A lot of evidence was taken, and the Committee’s report, which I will summarise, having just read it again, said that the evidence was not there to justify doing that.

Nevertheless, after the 2010 general election, the new coalition Government looked at the funding of the Forensic Science Service. They said that it was losing £2 million a month and things would have to change. They said that there was a real possibility, given that the Forensic Science Service was world leading, that we could sell our services internationally and make money from them. The Committee looked at that and said that the case was not made, because the statistics claiming that the cost was £2 million a month were based on false information. The laboratory at Chorley had already been closed, and the people working in the Forensic Science Service on the other side of Lambeth bridge were very worried about their future. The Committee certainly was not convinced that the changes should be made.

I will say this now so that there is no mistake: the Labour Government made some of the original decisions to change the Forensic Science Service, the coalition Government made a number of changes and the Conservative Government have made further changes. I do not see this as a party political matter at all. Like the Minister and other hon. Members around this Chamber, I want the forensic science facilities, whether private or public sector—it is not about differences between private and public—to yield the best information that will lead to the conviction of criminals. That is the key issue. It is not an ideological issue. Having said that, there has been a failure of Government, right the way through the process, to properly consider how to keep our elite status in world forensic science—it looks as though we have lost it now—and how best to deliver forensic science for the criminal justice system.

One of the conclusions of the Committee’s forensic science report, which was published during the 2010 to 2012 Session, was that if and when the Forensic Science Service disappeared, which it did, one of the things that would be lost was the context of the crime. The private sector does a very good job when it comes to simple, repetitive operations, such as doing fingerprint or DNA analysis. What is missing from the service at present, however, is the ability for the police to go to a public sector body, or a private sector body for that matter, and ask, “What question should we be asking? We are not scientists.” Previously when I visited the Forensic Science Service, it was very strong on the point that it would be able to help the client—the police, the criminal justice system—ask the right questions, which it could then examine scientifically before giving the information back. That has not happened, and that is one of the losses to the service.

The other loss to the service, to which the Government have never really responded, is that when the Forensic Science Service went, the money going into forensic science research and forensic science was lost and has never been replaced. The different science funding bodies do not really recognise forensic science as part of their bailiwick or funding responsibilities. Not only are the right questions not necessarily being asked, but the money going into research and science has been lost, and I believe it should be replaced.

During one of the many inquiries we have had, we heard from Dr Tully, who worked for the Forensic Science Service, then became a regulator and has now gone into academic life. When she came before the Committee, I asked her three or four times whether murderers and rapists would get off because of the changes in the Forensic Science Service, and every time she answered positively—that that would be the case. The right questions would not be asked, so the right information would not be fed into the courts system and very bad people would not be brought to justice. Murder and rape are the worst crimes, but the problem goes right the way through the system. If we do not have a good forensic science service, we do not have a good criminal justice system, because the criminal justice system relies on the scientific interrogation of crime science.

When the original decision was taken to disband the Forensic Science Service and leave things up to the market, there was an internal Home Office problem that I think indicates a broader problem. Professor Silverman, who was then the scientific adviser to the Home Office, told the Committee he was not consulted, and nor was the then Forensic Science Regulator. That indicates that the decision was viewed entirely as a cost-saving issue and not as a way of ensuring that the criminal justice system worked as well as it could to bring criminals to justice.

The other side—which the Committee has written about in every report since, including the latest one—is that now that the Forensic Science Service has effectively been disbanded, we all rely on the market to work. At different times, as the Minister will know, because he has replied to this point, the market in forensic science has been close to collapse for a number of reasons—most recently, because of covid, not as much work was being commissioned. One of the good sides of covid was that there was less crime, so there was less need for forensic science.

Another driver, over a longer period, was that the police were taking a lot of forensic sciences in-house to save money. However, they were not only saving money but using non-ISO-accredited systems to do that. They lost the good Forensic Science Service and replaced it with something with no accreditation, which makes it more challengeable in court. That was another reason why the Committee did not support the disbandment of the Forensic Science Service—because the market was too volatile and not stable enough to ensure that the forensic science that the police and the courts needed would be there to be used.

I do not know why Governments of different political colours have not got this correct and have dragged their feet on the regular call for the Forensic Science Regulator to be put on a statutory footing. It is half on a statutory footing now because my hon. Friend the Member for Bristol North West (Darren Jones), with Government support, took a private Member’s Bill through. However, even that Bill does not deal with biometrics in terms of the statutory basis for the regulator, so that demand has only partially been met.

I do not know whether the Minister, who has been in office for a period, knows why the Home Office, under different political parties, has not given the service the political prioritisation that the public would want, because I think the case is overwhelming. The public have an enormous appetite for television shows about forensic science and for reading detective novels, in which cutting up cadavers is the main focus. Yet, at the same time, our forensic service has gone from being one of the best in the world to, quite frankly, being moth-eaten and not as good as it should be.

I have spoken for quite a long time, but I want to emphasise a point that the Chair of the Committee made about custody pictures. If you, Dr Huq, were arrested—I am sure you would not be found guilty of anything—and taken into a police station, your DNA, fingerprints and photograph would be taken. If you were arrested by mistake, your DNA and your fingerprints would be destroyed if you wanted them to be, and you would have no criminal record, but your facial record would remain in the computers. With all the connections those computers have, that is very worrying. Most people do not know that they can ask for those photographs to be deleted. The Chair of the Committee referred to the Government’s commitment that they would be automatically deleted after six years. That is too slow. I do not think police forces have any right to keep a picture of you or anybody else who is not guilty on record, where it can be misused and accessed improperly in many cases. The Government have not, over that period, given the resources to police forces to delete those pictures. However, I have spoken long enough and I will let other people speak.

[Dr Rupa Huq (in the Chair)]

The first of our Front Benchers, who is also a Committee member, is Carol Monaghan.