Instruments drawn to the special attention of the House
Accreditation of Forensic Service Providers (Amendment) Regulations 2019 (SI 2019/1384)
Date laid: 29 October 2019
Parliamentary procedure: negative
These Regulations propose a variation to the requirement for accreditation under ISO 17025 for DNA-profile or fingerprint evidence assessed at the government-owned laboratories at the Atomic Weapons Establishment Aldermaston, and the Defence Science and Technology Laboratories at Porton Down and Fort Halstead. In this report, we raise a number of concerns about how this will operate and, in particular, whether the forensic evidence obtained under the new arrangement will be acceptable to the courts.
These Regulations are drawn to the special attention of the House on the ground that they may inappropriately implement European Union legislation.
Background
22.These Regulations amend the Accreditation of Forensic Service Providers Regulations 2018 (SI 2018/1276) which transposed EU Council Framework Decision 2009/905/JHA, known as the Forensic Services Framework Decision (“the Framework Decision”). The Framework Decision applies specifically to laboratory activities carried out at the request of law enforcement agencies responsible for the prevention, detection or investigation of crime. The Regulations have been laid by the Home Office and are accompanied by an Explanatory Memorandum (EM). We have received a submission from the United Kingdom Accreditation Service (UKAS), which raises a number of issues. These are described below, and the submission is published on our webpage.4
Compliance with the standard?
23.These Regulations propose a variation to the requirement for accreditation for DNA-profile or fingerprint evidence assessed at the government-owned laboratories at the Atomic Weapons Establishment (AWE) Aldermaston, and the Defence Science and Technology Laboratories (Dstl) at Porton Down and Fort Halstead. These laboratories specialise in the analysis and forensic interrogation of evidence where hazardous chemical, biological, radiological, nuclear and explosive (CBRNE) materials are present. The Government argue that these laboratories face specific challenges in gaining accreditation associated with the relatively low number of samples that they handle, and the necessary additional layers of safeguards required to work with such hazardous materials.
24.This instrument amends SI 2018/1276 so that the requirement for accreditation will be satisfied where laboratory activity is carried out in the specified CBRNE laboratories “by, or under the supervision of, an individual … who is employed by an accredited forensic service provider for the purpose of carrying out that laboratory activity”. The Government state that work in such laboratories is already conducted by or under the supervision of forensic experts (in other disciplines) who will be present when the work is undertaken and will be able to judge if the work is carried out to the required standard. The EM, at paragraph 2.7, states that:
“This amendment provides clarity that evidence processed by these laboratories will comply with the accreditation requirement in the Regulations, and therefore assurance that prosecutors can rely on such evidence to inform charging decisions and build cases.”
25.UKAS, however, argues that this new arrangement will not meet the requirements of the Framework Decision because accreditation involves an independent expert evaluation of a laboratory’s competence and an impartial assessment of its compliance with the international standard ISO/IEC 17025 General requirements for the competence of testing and calibration laboratories. The ISO standard includes detailed requirements for a laboratory’s management system, validated test methods, the suitability of the facilities and equipment, the competence of the personnel and the quality control and assurance practices.
26.UKAS also questions whether the change may lower current standards, as Fort Halstead currently holds UKAS accreditation for DNA recovery and would no longer need to do so under the Regulations.
Is this equivalent to the ISO standard?
27.The Regulations insert a new provision into SI 2018/1276 which says that, in relation to tests carried out on CBRNE materials at the three laboratories to which they apply, “the requirement for accreditation is satisfied if that laboratory activity is carried out by, or under the supervision of, an individual who is a relevant employee in relation to that laboratory activity”.
28.This raises a number of questions—how does accreditation apply, what constitutes supervision, and will the courts accept evidence obtained under the new arrangement?
29.Accreditation is essentially a third-party assessment of whether a process meets the standard set by the ISO; that includes a paper trail to ensure that the sample taken has been kept securely and not compromised in some way, as well as checking that the approved equipment and methods are correctly applied. UKAS, the UK competent authority under the Framework Decision, expresses doubts about the new arrangement.
30.We asked the Home Office whether the accreditation applies to an individual or the laboratory. We were told:
“The accreditation in question applies to organisations/laboratories rather than individuals although staff competence in a discipline forms part of the accreditation. Hence the need for the amendment to the SI, which states that the accreditation requirement set out in the original SI is satisfied when work is carried out in our specific laboratories by, or under the supervision of, an individual from an accredited laboratory.”
31.The House may wish to ask the Minister whether, irrespective of the competence of the “relevant employee”, the process still meets the ISO standard if it is not conducted in an accredited laboratory with its special equipment, conditions etc. The Home Office explained that where it is possible to remove the fingerprint or DNA from the hazardous material, the recovery of the evidence will be done in one of the named specialist laboratories, but the analysis of the recovered evidence will then take place at an accredited provider engaged by the police force in question.
32.Another issue concerns what constitutes “supervision”. The Regulations require supervision to be undertaken by a “relevant employee in relation to that laboratory activity”. Although the Home Office states in supplementary material to the Committee that these laboratories would only use forensic practitioners from ISO 17025 accredited police or private laboratories, we note that the wording in the legislation is broad and would seem to allow any scientist in that discipline to attend the scene.
33.We also asked how close the DNA or fingerprint specialist’s supervision of the sampling would be. The Home Office replied that the approach would be slightly different in each of the laboratories but all of them would use accredited forensic practitioners:
- Chemical and biological: forensic practitioners would either be hands on whenever possible and deemed safe, supervising in person, or via a video link from a safe space. It depends on the hazard posed by the contaminated item being examined.
- Explosives: items require specialist facilities and training to handle safely. Provided the necessary risk assessments have been carried out, staff from a different laboratory can attend an examination and, in some cases, may be able to physically handle explosives should the competent person in handling explosives deem it appropriate to do so. This will be assessed on an item-by-item basis.
- Radiological and nuclear: forensic practitioners from accredited laboratories conduct the forensic activities under supervision. All decisions relating to the forensic science activities undertaken on an exhibit are made by the ‘visiting’ forensic practitioner from an accredited laboratory. Guidance is provided about the safe handling of exhibits, radiation protection, and health physics monitoring.
34.The House may wish to press the Minister further on what the Regulations intend by “supervision” and whether the definition of “relevant employee” should require more specific expertise in taking forensic samples of this type.
Will the courts accept evidence obtained under the new arrangement?
35.Our greatest concern is whether the courts will accept evidence obtained under the new arrangement.
36.The Home Office asserts that the new arrangement will meet the necessary standard under the Framework Decision:
“The solution we have developed is sufficient to meet the requirements of the Forensic Services Framework Decision, which imposes the accreditation requirement as a means to ensure the quality of the output evidence. The Home Office is content that the solution we are implementing will meet this objective.”
The Department also told us that it had taken advice from the Crown Prosecution Service and other operational partners before laying these Regulations and was content that the legislation will allow the relevant evidence to be used in court.
37.UKAS, on the other hand, says that it “considers that the amendment to the 2018 Regulations poses a significant risk to the validity of forensic evidence in the criminal justice system and does not meet the intent of the 2018 Regulations to ensure that the UK can demonstrate requirements with the corresponding European legislation.”
38. The House may wish to ask the Minister for a full explanation of why the Government disagree with the assessment by UKAS that there is a “significant risk to the validity of forensic evidence”.
Conclusion
39.The ISO standard is an internationally agreed process based on third-party accreditation of a comprehensive, end-to-end process. Concerns have been raised about whether selective changes of the type contained in these Regulations risk invalidating that process. We acknowledge that the Home Office is trying to deal with exceptional and difficult circumstances but, given the doubts raised by UKAS, we draw these Regulations to the special attention of the House on the ground that, for the situations identified in the Regulations, they may inappropriately implement European Union legislation.
Marriage (Same-sex Couples) and Civil Partnership (Opposite-sex Couples) (Northern Ireland) Regulations 2019 (SI 2019/1514)
Date laid: 23 December 2019
Parliamentary procedure: negative
These Regulations allow same-sex couples to form a civil marriage and opposite-sex couples to register a civil partnership in Northern Ireland. The instrument also provides such couples with associated rights and entitlements, and sets out how equivalent overseas relationships should be treated in Northern Ireland. The Government say that, following consultation, they will lay further regulations later this year covering, in Northern Ireland, same-sex religious marriages and associated protections, and the rights to convert from civil partnership to marriage and vice versa.
The Regulations are drawn to the special attention of the House on the ground that they give rise to issues of public policy likely to be of interest to the House.
40.The Northern Ireland Office (NIO) and Government Equalities Office (GEO) have laid these Regulations with an Explanatory Memorandum (EM) and Impact Assessment (IA). The purpose of the instrument is to allow same-sex couples to form a civil marriage and opposite-sex couples to register a civil partnership under Northern Ireland law. The EM states that the Regulations provide such couples with a range of associated rights and entitlements and ensure that their relationships are recognised in Northern Ireland law, especially in relation to pensions and social security, children and families and gender recognition. The Regulations also set out how equivalent overseas relationships should be treated in Northern Ireland.
41.The EM explains that while the Government remain committed to restoring devolution in Northern Ireland, Parliament determined when passing the Northern Ireland (Executive Formation etc.) Bill that, in the continued absence of a Northern Ireland Executive, the Government should legislate to allow same-sex marriages and opposite-sex civil partnerships. Amendments to the Bill were passed in the House of Commons to require the Government to introduce regulations to extend same-sex marriage to Northern Ireland and in the House of Lords to introduce opposite-sex civil partnerships. The NIO says that previous legislative attempts in the Northern Ireland Assembly and, via Private Members’ Bills, in the UK Parliament did not succeed, and that under section 8 of the Northern Ireland (Executive Formation etc.) Act 2019 (NIEFA), the Secretary of State is required to make regulations no later than 13 January 2020 so that couples in Northern Ireland are eligible to form same-sex marriages and opposite-sex civil partnerships.
42.The EM explains that the Regulations only allow for civil same-sex marriages and that the Government intend to lay further regulations under the NIEFA later in 2020 to cover same-sex religious marriage and associated protections and the rights to convert from civil partnership to marriage and vice versa. According to the NIO, a consultation on these issues is to be launched later in January to take into account the “particular legal and religious landscape in Northern Ireland”. The NIO adds that, because not everyone supports the introduction of same-sex marriage or opposite-sex civil partnerships, this instrument introduces protections, including new exceptions, to ensure that it is not unlawful discrimination for religious bodies to provide blessings (that is ceremonies or events to mark a marriage or civil partnership) only to same-sex or opposite-sex couples, and to make clear that it is not a criminal offence simply to criticise same-sex marriage.
43.The NIO told the Committee that the recent decision to restore devolved government in Northern Ireland does not impact on the duty of the Secretary of State under Section 8 of the NIEFA to legislate in the areas of same-sex marriage and opposite-sex civil partnerships.
44.The NIO says that it worked with the Northern Ireland Civil Service in the drafting of the Regulations and that the instrument draws heavily on the equivalent legislative provisions in England, Wales and Scotland.
45.The IA identifies survivors’ benefits to a partner’s private sector defined benefits occupational pension scheme as the key monetised annual recurring cost that will arise from the changes and puts the total cost at £9.5 million over a ten-year period. The IA also identifies an impact on the public sector from defined benefit public sector pension schemes and from other tax impacts and says that the GEO is working with HM Treasury, the Department for Work and Pensions and others to assess the overall impact of opposite-sex civil partnerships and same sex-marriage on public expenditure.
Conclusion
46.Given Parliament’s previous interest in same-sex marriage and opposite-sex civil partnerships, the House may welcome an opportunity to debate this instrument, especially in the context of the particular legal and religious landscape in Northern Ireland. The Regulations are drawn to the special attention of the House on the ground that they give rise to issues of public policy likely to be of interest to the House.
4 Secondary Legislation Scrutiny Committee publications page: https://www.parliament.uk/business/committees/committees-a-z/lords-select/secondary-legislation-scrutiny-committee/publications/.