Forensic Science Regulator and Biometrics Strategy Bill

Debate between Rupa Huq and Chris Green

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

[Dr Rupa Huq (Ealing Central and Acton) (Lab)]

What a pleasure it is to be called so unexpectedly early in this debate. Obviously your algorithm is working, Mr Speaker, even though the algorithms for other things—testing, exam results—are not. Let us not get into that.

I congratulate my hon. Friend the Member for Bristol North West (Darren Jones) on coming so loftily in the private Members’ Bill ballot—a sensation I have never experienced and probably never will. He is also the Chair of the Business and Industrial Strategy Committee. He is one Opposition Member who will actually make his mark on our statute book. We all dream of the day we can do that, but from what the Minister says, it sounds like my hon. Friend will.

I rise to speak in support of my hon. Friend’s Bill. I have taken on board the points against it, but I think they are all refutable. It seeks to right a whole load of wrongs that are going on in our society—we have heard about miscarriages of justice and unreliable evidence—and it also reins in the once seemingly untrammelled forces of the free market. We have seen something of that during the pandemic—yesterday, another financial stimulus was announced. I am glad that the Government are now converts to interventionism, as some of us have always been. It is great to have this Bill at a time when we are all so preoccupied by coronavirus or Brexit. It is something a bit different, but it is badly needed.

Recently, the word “forensic” seems to be used every Wednesday when Prime Minister’s questions happens and our Leader of the Opposition takes apart the Prime Minister, but we are dealing with “forensics”—plural. The mere mention of that term conjures up images of wily experts solving cold cases long after the fact, dissecting the details and piecing together the evidence from the crime scene. We think of skilful professionals, with high-tech, high-end resources at their disposal, no expense spared, crusading for justice in the public interest. The American drama serials—the transatlantic type—have shaped the imagery in the public imagination: programmes such as “NCIS” and “CSI”. I know that our previous Prime Minister, the right hon. Member for Maidenhead (Mrs May), is a big “NCIS” fan. At the height of the cross-party talks in her Brexit negotiations, I found myself face-to-face with her at No. 10, and to break the ice, I asked, as you do, “Was being Home Secretary like ‘Bodyguard’?” Instead, she enthused about “NCIS”, which was her favourite programme, and said it was more like that.

Forensics started about a century ago with fingerprinting techniques, and it can stray into things such as taking fragments of carpet fibre and even bite marks. By the ’80s, when DNA profiling of samples was pioneered, the field really got a spring in its step. In today’s world, it is accelerating, and its use is going on and on. With cybercrime rapidly rising, it is needed more than ever.

[Chris Green]

The hon. Lady commented on the free market, but does she not think that, with DNA profiling and fingerprints, there is a happy marriage between forensics on the one hand and the free market on the other, each lending its expertise to the other?

[Dr Huq]

The hon. Gentleman is right: we need a mixed-economy approach. Yes, we can allow private firms—I am not saying ban the private sector—but they should coincide with regulation, which is a good thing.

--- Later in debate ---

[Chris Green (Bolton West) (Con)]

I congratulate the hon. Member for Bristol North West (Darren Jones) on bringing forward such an important Bill at such an important time. There is so much pent-up demand in both Houses of Parliament for this Bill to be delivered, and I know that the Home Office is incredibly enthusiastic about it, so it is timely that we will get it done. Unfortunately, in the previous Parliament I tried and failed, and for me it is a lesson about instability in Parliament having an impact on people’s lives and about the ability to deliver key services. It is really important at this stage to get this Bill delivered.

As has been highlighted, there have been reports in both Houses, which I think indicates not only the level of support for the Bill, but the critical necessity of doing so at this stage. In 2011, 2013 and 2016, the House of Commons Science and Technology Committee recommended that the regulator should receive statutory powers to enforce compliance with quality standards. In Sir Brian Leveson’s review of the efficiency of criminal proceedings—that was in 2015—he repeated the call for statutory powers. In 2019, the House of Lords Science and Technology Committee, in a very extensive and authoritative report, called for such powers. The body of evidence building up indicates a signal failure within the system which now needs to be put right.

It is worth bearing in mind that there is a little bit of history before the dates that the hon. Member for Ealing Central and Acton (Dr Huq) highlighted, so I will touch on that briefly. In 2002, the Forensic Science Service stopped being a preferred supplier of forensic services to the police forces. In 2003, a Home Office review of the Forensic Science Service recommended that it become a Government-owned company, and in 2005 it became a Government-owned company in that sense. In 2008, the Forensic Science Regulator was established without the statutory provisions that are now so important. The Home Office also established the national forensics framework to allow police forces to purchase forensics from private suppliers and the FSS, using standard contracts with pre-agreed terms and conditions. Police forces therefore could choose not to purchase forensics through the framework but had to use the procedures for such services. Understandably, in 2010, with a whole series of concerns and problems, the coalition Government announced that they would shut down the FSS, citing in the decision its losses of £2 million a month. The need for reform was at that stage and is now abundantly clear; how the system is reformed is a different question.

[Dr Huq]

I thank the hon. Gentleman for the history lesson. I accept that there was some tinkering under the Brown and Blair Governments, but he must admit that it was under this Government’s previous incarnation that full-on privatisation occurred. That needs addressing. As I said, I do not want to have a fight with him, but I did want to put that on the record.

[Chris Green]

The hon. Lady makes a fair point. When a direction of travel is set, it is sometimes difficult to change it around.

The Forensic Science Regulator, Dr Gillian Tully, in her foreword to the 2019 annual report, published earlier this year, sets out clearly and comprehensively what we ought to think about in the debate. I will therefore read from the foreword at length, which says:

“Whether it is data science, computer science, physics, chemistry, biology or another discipline, forensic science should be firmly rooted in good science. Courts should not have to judge whether this expert or that expert is ‘better’, but rather there should be a clear explanation of the scientific basis and data from which conclusions are drawn, and any relevant limitations. All forensic science must be conducted by competent forensic scientists, according to scientifically valid methods and be transparently reported, making very clear the limits of knowledge and/or methodology. Implementation of quality standards is a means to this end, ensuring a systematic approach to scientific validity, competence and quality. It therefore remains my absolute priority to publish a standard for the development of evaluation opinions, to ensure that this systematic approach to quality covers all scientific activities from crime scene to court.

Some practitioners and leaders understand quality. They may be (and indeed should be) challenging about the detail of how to adopt the standards and may rightly point out the need for additional resources. However, they seek to use the requirement to adhere to quality standards to innovate in terms of process and/or technology and, in doing so, they bring about positive change. Often, they are truly inspiring.

Others misunderstand. They may grudgingly implement standards, but in a way that cripples their productivity and locks staff into rigid protocols, no matter what the case requires. Or they may devote much time and energy to avoiding compliance, arguing against change and sticking to ‘how we’ve always done it’. The problem is that technology has moved on. ‘How we used to take anti-contamination precautions’”—

for example,—

“is no longer fit for purpose in a world where the sensitivity of DNA methods has increased by several orders of magnitude.

My hon. Friend the Member for Christchurch (Sir Christopher Chope) is not currently in his place, but, on his point, perhaps with ever-changing technology and a need for higher levels of technology, there is a requirement for additional resources in this area, not just in general but for the regulator and her team.

The foreword continues:

“‘How we used to do digital forensics’ is no longer fit for purpose in a world where data volume and complexity have ballooned, and a substantial subset of the data required is in the cloud. Throwing massive volumes of extracted data to investigators, who generally lack the tools and methods to interrogate the data effectively, just shifts a problem; a more integrated approach could be transformative.

Leadership and innovation are critical, because trying to transpose quality standards onto ineffective processes without change only succeeds in adding inefficiency to ineffectiveness.

Whilst the body of this report deals with the year to 16 November 2019, the foreword presents an opportunity to comment on more recent events and I am pleased to note that the Government has committed to investing approximately £28 million over a year to improve forensic science, via the Transforming Forensics Programme. It will be a massive challenge for the programme to deliver effective change, but it is my hope that the work will design quality into innovative approaches, in a way that brings together the best of the public and private sectors and academia.

A new government has been elected and I have been assured that there is no change from the policy to legislate to provide statutory enforcement powers for the Regulator. I am, however, disappointed to note that there is, as yet, no definite plan for government legislation. I therefore welcome the Forensic Science Regulator and Biometrics Strategy Private Member’s Bill, proposed by Darren Jones, MP. The delay in legislating has, without doubt, resulted in slower progress towards compliance with quality standards, particularly in very small companies and police forces. Nonetheless, there is much learning from the progress thus far and this is reflected in my priorities around assisting with and improving the adoption of standards.

I will continue to lobby for change to ensure that the policies for commissioning forensic science support the provision of high quality forensic science. That has two main elements: the first is that those making case-specific commissioning decisions do so in a knowledgeable, collaborative and outcome-based manner, proportionate to the seriousness of the case and the potential for forensic science to contribute to criminal justice outcomes. I therefore welcome a new project, in the”—

Home Office,—

“that aims to better quantify the impact of forensic science in the Criminal Justice System. The second element is to ensure that a longer-term strategy for sustainable provision of high quality forensic science is developed as a matter of urgency. The pricing uplifts put in place to stabilise the market this year were the beginning but not the end of this process and I have recently been made aware of concerns in the digital forensics community about unsustainable pricing, driven by high weighting on price in procurement. We must not go back into a spiral of unsustainability.”

The sense of a spiral of unsustainability is incredibly important for the future, for the resources are allocated, encouraged and supported through the regulator and for those that police forces around the country allocate to different parts of what they deliver on justice and policing. This cannot be as underfunded as it has been. Ground needs to be regained.

Fundamentally, this is about the credibility of a significant body of evidence that should be used to convict the guilty and, in many cases, set the innocent free. Without rigour and the statutory enforcement power to back it up, too often, we will not see justice delivered and law and order upheld. In recent times, there have been a couple of very significant instances where we have seen failures in the system, if not necessarily in the market, and we have to be careful even though they are market providers—I am thinking of the failures of Randox and Key Forensic Services. Fundamentally, these could and perhaps should be seen more in the context of a lack of oversight, or a lack of ability to enforce concerns in the oversight position, as opposed necessarily to being a failure of the private sector. Whether we are talking about the police forces and their forensic units, or the market forensic units outside the police forces, they are all under pressure and under constraints, so we ought not to use Randox and Key Forensic Services as case studies against the market sector. However, we can reflect on the impact that those cases have had and how we should go forward.

Many thousands of cases are affected when a laboratory, in whichever way, goes wrong. Thousands of samples may not be analysed in the right way or may be contaminated, and that can have an impact on trials. In some cases, the guilty can get off; in other cases, the innocent may be found guilty.

We can just imagine the circumstances if someone who needs to drive for their living is convicted of drug-driving and can no longer do their job. That has a massive impact on them personally—perhaps they have to switch jobs or they become unemployed—it has an impact on their ability to look after their family and pay their mortgage, and it will have an impact on family life. Even though in many ways this issue can seem abstract and niche in its concerns, it has an impact, because law and order and the courts system have such a wide impact on so many people’s lives right around the country. That is an important reason why we need to tighten regulatory oversight.

There are two broad categories for forensic science: trace forensics, which is perhaps what people will be familiar with, thinking of DNA, fingerprints and drug samples, and digital forensics, which looks at computers, smartphones, mobile devices and social media. Increasingly, there are concerns about cloud computing and the colossal volumes of data we produce these days. It is thought that about 90% of crime has a digital element and, hearing the awful news of what happened in Croydon overnight, we can be pretty sure that there will be a significant forensics contribution to that investigation.

That digital element can expand to cover many different areas, including CCTV and cyber-attacks. I was startled to read that the average British household now has on average 7.4 digital-enabled devices, and we have to look at that being set to continue into the future, so there are massive challenges. That perhaps goes into the whole idea of big data, because big data is not just about large volumes of data but about the extraction, manipulation, use and interpretation of that data. There is far more to it than just getting hold of a device; we have to do so in a managed and controlled way.

As with any science, these disciplines do not sit in isolation, so increasingly we see that any given crime will require that expertise from both the trace element and the digital element of forensics. How we manage those two sectors coming together and working together places increasing demand on the sector, requiring more and more advanced management. If we do not have the resources to look into how we manage the system and perhaps do not have the resources going in, that creates increasing strains, which then have an impact on the rest of the criminal justice system and policing.