Official Report: Minutes of Evidence

The Deputy Chairperson (Ms Sheerin): Joining us from the Department of Justice are Lisa Boal, the head of the Police and Criminal Evidence Order 1989 (PACE) policy and legislation branch, and Andrew Laverty, the Bill manager. They are here to discuss with us a number of matters relating to Part 1 of the Bill, specifically biometric data and the retention of such.

Members, I remind you that, at last week's meeting, we raised a number of issues on which we required further information or clarification from the Department. We agreed to write to the Department to advise that we were actively considering a number of amendments to Part 1 of the Bill. We also asked whether photographs were within the scope of the Bill's provisions and about review mechanisms for biometrics.

I wish —. I welcome the officials.

Mr Andrew Laverty (Department of Justice): I thought that you were going to wish us goodnight, Chair. [Laughter.]

The Deputy Chairperson (Ms Sheerin): I want to wish you goodbye, but, unfortunately, we are not quite there yet. You have had sight of the questions that we posed, so do you have a presentation that you want to make, or are you happy for us to launch into questions?

Mr Laverty: We are happy for you to lead the charge, Chair.

The Deputy Chairperson (Ms Sheerin): OK. Thanks very much. We had some queries about whether biometric data include photographs specifically. There was agreement among the Committee that, in order for the Bill to be future-proofed, it should include provision for photographs. Will you provide clarity on that?

Ms Lisa Boal (Department of Justice): We have explained before that the initial purpose of the legislation was to address issues around fingerprints and DNA. Photographs is an evolving area. We have not included it in the Bill, because we want to take it forward as a separate piece of work. We want to look at not just the retention of images but their use, given more recent developments in different forms of biometrics technology. I do not think that it is as simple as including the word "images" in the Bill. We want to look at it in the round, which will include looking at our policy on the use and retention of images, and go through the proper policy development process. We have not done any scoping work, any consultation or any impact assessment on the inclusion of photographs. We therefore want to do that as a bespoke piece of work so that we can think through the various implications before bringing it forward as a properly future-proofed policy, particularly in light of the work that the Home Office is consulting on and what Scottish colleagues are working on.

The Deputy Chairperson (Ms Sheerin): I take on board your comments about the need for a more fulsome piece of work to be done, but it would be remiss of me not to say that the Committee feels that this is a missed opportunity. In order to future-proof the legislation, we are introducing provisions on biometrics. We all consider photographs to be biometric data, so we feel as though there is a gap in the Bill.

Mr Laverty: I have no policy responsibility for biometrics or photographs, but, from my perspective as the Justice Bill manager, if you were to produce provisions at this stage, on which no policy scoping work had been done, no consultation had been done, no options had been put to the Minister and no engagement has taken place with the Northern Ireland Human Rights Commission (NIHRC) or the Attorney General, there is the very real risk that you would be entering the same realm of criticism that arose from the Mediahuis judicial review (JR) judgement, which was that there had been a lack of proper proposals and scrutiny. That policy had been properly scoped out, debated and consulted on. The then Committee for Justice had had a full Committee Stage available to it in which to consider the options for that particular policy area, whereas this is something that has not been looked at in any depth or detail. That is my understanding from speaking with Lisa and colleagues in the police division.

The Deputy Chairperson (Ms Sheerin): You have clarified your position. That is OK.

Very briefly, I will move on to the retention of biometric data where somebody is not charged with or convicted of a crime.

We had concerns about the three years and the potential extension for two years. What is the clear position?

Ms Boal: The provision was previously included in the Criminal Justice Act (Northern Ireland) 2013, and it mirrored the provision already in place in England and Wales and has operated without any challenge or issues. It was simply re-enacting a provision that was already made in the Criminal Justice Act (Northern Ireland) 2013 to deal with the particular circumstance where the police can continue to hold material. For example, somebody may be charged but not convicted, and they might go on to reoffend, and it is to make the material available for that short period of time in case it becomes relevant to a future investigation.

The Deputy Chairperson (Ms Sheerin): Thank you.

Mr Bradley: I would be keen to see photographs included in the biometrics. However, I will not die in a ditch if a better piece of legislation is imminent, and coming down the road very quickly.

Ms Boal: It would not be imminent because we have to start the policy development work and consultation. It will take a bit of time to work through that process. Obviously, there is no more space left in the legislative timetable for this mandate. Realistically, it will something for the next mandate.

Mr Bradley: It is important because of the advances in photographic technology and AI. I am concerned that the technology will evolve ahead of the Bill, and we will miss an opportunity to have an important piece of evidence included in the biometrics.

Ms Boal: I appreciate the concern, and it is why we want to take the time to look at the issue properly to make sure we take account of the various issues and implications, but there is neither the time nor the capacity to include it in the Bill.

Mr Bradley: Thank you.

The Deputy Chairperson (Ms Sheerin): Doug and Brian have indicated. Sorry, Ciara had indicated first. Go ahead, Ciara. Sorry.

Ms Ferguson: Given the fact that, just this week, the PSNI actively looked at ways to use AI facial recognition technology, and there is widespread use of AI, it is a serious human rights concern because of the privacy issues and the risk of a miscarriage of justice. It reinforces the need for the photographs to be included. You have noted that we need to ensure that there is robust debate and consultation, but why was it not looked at in the first place, given the fast pace of technology? Secondly, can the Department commit to taking it forward as quickly as possible, but with due process?

Ms Boal: It was not done originally because the Bill started off as a piece of work to amend the legislation for the retention of fingerprints and DNA, and that is currently provided for in the PACE Order. Our original task, which came out of the European court judgements, was to amend the legislation to take account of judgements made in 2010 and 2020. I am sure that the Committee is well versed in the history of the previous attempts to bring forward the legislation, but, for various reasons, it was not possible. The Criminal Justice Act (Northern Ireland) 2013 is in place, but it was not possible to commence it due to the legacy issues that had to be worked through. We had various phases when the Assembly was suspended, and legislative plans had to change.

The work on fingerprints and DNA has been in the pipeline for a long time, and it is the first chance that we have had to introduce the legislation. The initial task was focused on fingerprints and DNA; images have been a recent development, and it was not factored in. We have tried to finish the original task on fingerprints and DNA before moving on to images. We are committed to taking forward work on images, but it will be when there is capacity, because we need to get the Bill through first and then start the work on images. It is a commitment for us to do the work, as and when we have the capacity.

Mr Laverty: I seek to reassure Ciara about the Department’s legislative programme, which is a rolling programme of analysis of the bids that are received at semi-regular intervals over the course of a mandate. It covers the areas identified as requiring primary legislation and the kinds of legislative vehicles that will be needed to bring forward priorities for the Minister, the Department, the Programme for Government and TEO's legislative programme.

There is ongoing work through a continual scoping exercise on the priority areas that need to be considered. Obviously, we have a very congested legislative programme for the remainder of the mandate, but we are already working on scoping out those areas that will potentially be included in Bills for the start of the next mandate. There is always a lead-in time of a minimum of six to 12 months to identify discrete policy areas, to make sure that they are consulted on and to have engagements about human rights and with the Attorney General and the Information Commissioner's Office. There is a dual process whereby individual business areas are progressing their policy development and, at the same time, criminal justice policy and legislation division (CJPLD) in the Department is managing an overall and ongoing rolling legislative programme.

In the not-too-distant future, we will commission an exercise to identify priorities for potentially years 1 to 2 of the next mandate to see what policy resource is available; whether there are priorities for this Committee that the next Committee might seek to endorse; and whether there are areas that the Minister is frustrated that she has not been able progress in this mandate that she wants to be at the top of the pecking order for the next mandate. We are never working on a fixed basis and saying, "This is the programme. This is what is included and that is it".

I speak as someone with experience in policy and legislation, but I have no detailed knowledge of biometrics. I completely understand the Committee's interest in that regard, but, as a Justice Bill manager, I am very concerned about the prospect of something being dropped into the Bill that could have serious unintended consequences because there is not the resource and time to scope it properly. We want to ensure that something that is brought in with the best of intentions does not end up causing significantly more difficulties than it resolves.

Ms Ferguson: Thank you for that. I appreciate the scale of the work that you are undertaking and the length of time that it takes, and I know that you want to have a robust process. You could furnish us with information — not now — so that we can get clarity about the resources that you have in the Department to take forward legislation. That will mean that we can better understand the challenges. It is quite frustrating that, in a sense, we are behind the times from a legislative point of view, particularly when it comes to technology, which is moving so fast. I understand and appreciate what you said, and we want to ensure that there is an effective consultation. When you set out, this was not part of it. Thank you for that. It is good to get an understanding of that, but, likewise, it would be useful to get an understanding of the resources that are available and the ideal level of resource to assist you in your work.

Mr Laverty: Ongoing headcount exercises are being carried out at the moment. Anecdotally, I can talk about my branch. I am head of the criminal law branch in CJPLD. I am down a full-time deputy principal (DP) and a full-time staff officer, so a team of six has been a team of three for six years. We have had a DP for two years who has just come off the grade 7 competition, so we are potentially at half strength. However, we are trying to work on the priorities in our small branch and division to see whether we can utilise that recently promoted grade 7 person for another purpose. It is about what we manage as a priority in the remainder of the mandate as opposed to focusing on future legislative programme requirements, because that is also a resource-intensive area. Legislative programme management is done on a cross-departmental basis rather than through individual divisions or business areas putting forward little pockets of legislation in a siloed fashion. There is a lot of strategic oversight at senior level, and that cascades.

Ms Ferguson: It is important that our ambitions be matched by the resources required by the Department to take the work forward. It is good to have a better understanding of that. Thank you.

Mr Laverty: Thank you.

Mr Beattie: Thanks, Andrew and Lisa. I really appreciate the work that you are putting in. I know how complicated and difficult it is and that it involves long hours for you.

There is consensus on the Committee that photographs, as biometrics, need to be part of this. I will be honest with you: I am slightly surprised that that was not picked up on earlier. Maybe that was not deliberate, but it was made known earlier. I have a sense that we, as a Committee, made it known early on. My concern now is that, if you are not going to put it in, the Committee might decide to table an amendment, or a private Member might do so; regardless, I have a sense that it is something that you will have to do.

I fully get the point about compressed time and the legislative programme, but that came from the Department. The Department compressed the programme by including three Bills, each of them a big Bill, over a relatively short period. That problem of management comes from the Department, but I get a sense, Andrew — I do not know what will happen if this happens — that somebody will stick an amendment in anyway.

Mr Laverty: I fully appreciate that. We would work with the Office of the Legislative Counsel to identify areas of fundamental concern at the earliest opportunity and see whether those could be addressed. Off the top of my head, I wonder whether that could be accommodated by means of an order-making power that would create an umbrella provision allowing future provisions on photographs to be made by secondary legislation. That could certainly be brought forward in a much shorter time frame, albeit with the Committee's full scrutiny. If a provision required any such instrument to be a draft affirmative, that would need to be debated in the Assembly.

I am not offering that as a solution but purely thinking about how, if we were told that something absolutely had to be done, that might be accommodated without creating the potential for — I do not want to use the word "mischief" out of context — an MLA-drafted amendment that looks perfectly like a piece of legislation because it is produced on a template but that could, as you know, have unintended consequences.

Mr Beattie: The concern — Maurice highlighted it well — is that technology is moving so quickly. In debates in the Chamber, we have talked about how AI is interacting with images. Technology is picking up. If we say that photographs are not going to be part of the Bill and that we will look at that in the next mandate, we will really be talking about doing so two or three years from now, when technology will have completely shifted yet again. In truth, Andrew, the fear is that, when we come to debate and to try to pass the legislation, that will come up. That is the concern.

Mr Laverty: It is likely to have support. I will offer one thing in the Department's defence. At the point at which the Bill was ready for introduction, a number of amendments had been identified. They had all been consulted on, and all the proper engagement had been done, but there was no opportunity to complete the drafting for the intended introduction date of April 2025. We got hammered — I am sure that you are familiar with what the Department faced — with criticisms that our tabling amendments to the Justice Bill was bad practice and bad protocol and that it should not be happening.

I would turn that around and say that we were working on the assumption that preparation for the amendments was already well advanced at the point of introduction and at the point where the Committee Stage began. We were reeling a bit from that criticism, and we had a sense that there was not the scope for us to talk about bringing in anything further. We are in that scenario where this is something that the Committee is very much in favour of, but is it still bad practice and bad protocol, even though it has achieved broad consensus around the table.

Mr Beattie: Thank you again for all the work that you are doing on this. I know that there is a heavy workload, but that is the reality of where we could be. I just want to mention —.

Mr Laverty: Absolutely. It is not just this. Ironically, it is a consequence of the extent of this Bill's Consideration Stage. There is no other vehicle by which anything else can be accommodated in this mandate. Other areas have got the Committee's attention. The likes of the amendment for the PSNI vetting and barring list is an example. As a result of representations that were made to the Committee during its call for evidence, there was a request that the Department be accommodating. It is similar with the big one, deepfake porn. We are doing the best that we can in the areas that are considered the most essential, but we completely understand the Committee's desire to see this reflected as well.

The Deputy Chairperson (Ms Sheerin): I appreciate the rationale that you have laid out. I am going to bring Brian in. I hate to silence anyone, but photographs as biometrics have been well covered, if you were going to mention those.

Mr Kingston: No, I just want to clarify. The normal model is that material is held for three years, which can be extended for a further two years. Is that —?

Ms Boal: That is under that particular provision, which is article 63G. In that circumstance, yes.

Mr Kingston: Would that be most cases?

Ms Boal: No.

Mr Kingston: No?

Ms Boal: Under the legislation, the norm will be that unless somebody is convicted, the material will be deleted, except in those particular circumstances.

Mr Kingston: Not convicted? Yes. If they are convicted, can the material be retained?

Ms Boal: Yes. The Bill sets out the various retention periods. The length of the retention period depends on the disposal that is given.

Mr Kingston: Turning to exemptions or exclusions, different limits apply to various terrorism offences, the International Criminal Court and the National Security Act 2023. Those are very serious offences. Is retention in those cases for a longer period?

Ms Boal: That depends on the relevant legislation under which the material is taken. The retention periods are set out in the various pieces of legislation under which the material is taken. Those are all reserved and excepted matters. In the case of terrorism offences, material is retained indefinitely if a person is convicted. Those retention periods are set by the Home Office.

Mr Kingston: I would like to think that those would be longer periods. You want to avoid a situation in which important evidence is destroyed.

Ms Boal: I am not quite sure what the retention periods are for [Inaudible.]

Mr Kingston: Especially if there could be a future crime where it could be used. OK. I have a question about the commissioner, but I presume that we will come to that.

The Deputy Chairperson (Ms Sheerin): If you want to ask for clarification on the biometrics commissioner, that is OK.

Mr Kingston: OK. Will the commissioner be an employee of the Department of Justice?

Ms Boal: No. It will be a public appointment, so it will be an independent officeholder. The commissioner will be appointed by the Minister but will be independent. It is the same type of model as the prisons or the Police Ombudsman.

Mr Kingston: Who will the commissioner be paid by? Will the commissioner be a civil servant?

Ms Boal: The commissioner will not be a civil servant. They will be a public officeholder.

Mr Kingston: OK.

Ms Boal: They will be paid through the Civil Service payroll in some way, shape or form, but they will be an independent officeholder and not an employee. They are not like a senior official in the Department; they will be an independent officeholder — independent of the Department and of the Minister.

Mr Kingston: Has a budget been set for the commissioner's office?

Ms Boal: That will all be worked out as part of the Department's budgeting process.

Mr Kingston: It is not specified at this stage, then?

Ms Boal: Not at this stage, no.

Mr Kingston: OK, that is all, Chair.

Ms Finnegan: The Scottish Biometrics Commissioner has emphasised that biometric collection must be necessary and proportionate, and he has successfully driven a significant reduction in biometric data captured from children by police in Scotland. Will you commit to learning from the Scottish Biometrics Commissioner around the safeguarding of children, given that there is a successful model from another jurisdiction?

Ms Boal: Once the biometrics commissioner is in post, it will be particularly important that they take a lot of the learning from the work that has been done in Scotland in developing the guidance and whatever the commissioner will be required to provide. I imagine that they will want to do that to ensure that they look at issues around safeguards for children and young people, and, obviously, we will be updating the PACE code to set out the various safeguards that are in place. Obviously, I cannot speak for a future commissioner, but I dare say that they will want to learn from the experience in Scotland and the work that has been done there to inform how the legislation will work in future here.

The Deputy Chairperson (Ms Sheerin): I do not think that any other members wish to come in.

Mr Laverty: Chair, you notified the Department of your intention to explore two potential amendments on biometrics, and one of them included a review mechanism. Is that a review for reporting purposes? I am curious because, during the previous mandate, we had additions both to the Domestic Abuse and Civil Proceedings Bill and to the Protection from Stalking Bill. Those were about making information available within a specified period of time which would be used to assess the success or otherwise of the legislation. Was it that kind of a review mechanism that you were talking about, or was it a review of a function or a person?

The Deputy Chairperson (Ms Sheerin): If I understand it correctly, it is good practice to insert a review mechanism so that you can assess whether or not the legislation is working.

Mr Laverty: I was personally involved in the Protection from Stalking Bill, and we have already produced the first report under that. The only lesson learned from that which I seek to have you consider is that there was a great desire for a great deal of information that was not readily available as part of the stalking legislation, which we cautioned about at the time but which was included in the legislation anyway.

Ms Boal: On the biometrics provisions, the biometrics commissioner will have a statutory duty to keep the legislation under review and to provide an annual report, which will be laid before the Assembly, about how the legislation is working. That is an inbuilt review process. We see that as the role of the commissioner to report annually on how the commissioner is working and to provide advice to the Minister on any changes that may be necessary or any recommendations to the Chief Constable, whatever it may be.

The Deputy Chairperson (Ms Sheerin): I understand that, as it is laid out, the biometrics commissioner will ultimately be answerable to the Chief Constable and that the Chief Constable will have oversight.

Ms Boal: No. The commissioner will be independent and will have oversight of how the legislation is working.

The Deputy Chairperson (Ms Sheerin): OK. I do not know whether that satisfies the intent of those who wish to bring in that review mechanism.

Mr Laverty: I offer it for your further consideration, Chair.

The Deputy Chairperson (Ms Sheerin): I appreciate that. At the start of the meeting, we had a closed session where we considered some potential amendments to the live links section of the Bill. We did not perhaps have the opportunity to go through them all in detail, but some concerns were raised around the confidentiality aspect for anyone in a custody arrangement to have a conversation with legal representation and to have access to legal representation.

Mr Laverty: Is that the police live link provisions that are in the Bill already?

The Deputy Chairperson (Ms Sheerin): Yes. It is potentially an additional clause and changes to clause 20, I think. I am not looking at it directly.

Mr Laverty: My memory is not what it was, so please refresh my memory on clause 20.

Ms Boal: Clause 20 is on the use of live links for police interviews.

The Deputy Chairperson (Ms Sheerin): There should be a very explicit right to access to legal representation at that point, and that should be confidential.

Ms Boal: There are a couple of things there. Arrangements for interviews are not included in the primary legislation. That is all set out in the PACE codes. Clause 20 is about the roles and responsibilities of police officers in conducting and facilitating an interview. Clause 21 is to do with live links for the use of extension of detention reviews. There is a requirement there for the person to have had legal advice before they can consent to the use of a live link. So there is a requirement for the person to have had legal advice. The PACE codes will set out in more detail how all that is to be done in practice. We have explained before that we have to make updates to the PACE codes to support the implementation of the live link provisions. We will introduce those amendments for consultation once the Bill is in place. The various safeguards will be set out in the statutory PACE codes. They will be out for consultation once the Bill achieves Royal Assent. That is where all the various safeguards will be set out.

The Deputy Chairperson (Ms Sheerin): We also want to insert a new clause to define what should be included in the reporting of anything that happens in a custody arrangement that is via a live link.

Ms Boal: I am not quite sure what you mean in respect of the reporting. The live link is the means by which the extension of detention review or interview is carried out, so the interview will be recorded in the normal way.

The Deputy Chairperson (Ms Sheerin): I suppose that it ensures the confidentiality and safety of all involved. It will be a clause to ensure safeguarding, basically.

Mr Laverty: It might be a case of quoting the PACE codes or the section of PACE.

Ms Boal: That might already be covered in the PACE codes.

Mr Laverty: The two things would probably need to be read in parallel rather than in isolation. It is perhaps something that Lisa could follow up on in setting out the PACE code specifics.

The Deputy Chairperson (Ms Sheerin): And a review clause for the effectiveness of these —.

Mr Laverty: Live link provisions.

Ms Boal: Again, I do not know whether we would normally do that, but we can —.

The Deputy Chairperson (Ms Sheerin): That is OK. We just want to consider those.

Ms Ferguson: In relation to the review mechanisms, it is very important to define what should be included in custody records involving live link proceedings.

Ms Boal: Again, that is set out in the PACE codes. The PACE codes set out what has to be recorded in a person's custody record.

The Deputy Chairperson (Ms Sheerin): Is that all?

Ms Ferguson: Yes.

The Deputy Chairperson (Ms Sheerin): Does anyone want to raise anything in respect of Part 4 of the Bill?

Mr Laverty: I hope not, because we do not have any policy leads for Part 4 of the Bill here.

The Deputy Chairperson (Ms Sheerin): I will put on the record that we have concerns around the

.

Mr Laverty: I can bluff to a degree, Chair, but I am not too sure that I could go into detail.

The Deputy Chairperson (Ms Sheerin): I am getting déjà vu, because I think that we have been in this position before.

Mr Laverty: There have been developments in regard to legal aid taxation, in that the legal aid taxation amendments have been drafted. Again, I do not wish to speak for those policy leads, as I have only a superficial understanding, but, as a result of those provisions, it looks as though the new amendments might make clause 28 redundant. If there are concerns around the existing taxation clause of the Bill, they may be addressed by the amendment, and we are due to share the text of that with you as soon as is practicable.

The Deputy Chairperson (Ms Sheerin): When is practicable?

Mr Laverty: Within the coming weeks. We have the text of an amendment from the Office of the Legislative Counsel. Policy leads and Departmental Solicitor's Office legal colleagues are quality assuring it to make sure that it delivers what is intended. We want to do that before we share text in case there are any future changes. We do not want to be disingenuous and present you with something that requires further tweaking.

The Deputy Chairperson (Ms Sheerin): OK. I appreciate that. I will move on and invite other members to come in if they wish. The amendment around removing the crime of vagrancy, from our perspective —.

Mr Laverty: Again, I do not have the policy lead with us, but, as it stands at the moment, the Minister had to remove the —.

The Deputy Chairperson (Ms Sheerin): Yes, I know. I am saying that I am content with the repealing of that offence.

Mr Laverty: Oh, right. OK.

The Deputy Chairperson (Ms Sheerin): Sorry.

Mr Laverty: I was doing a lot of mental gymnastics there to try to come up with something plausible.

The Deputy Chairperson (Ms Sheerin): That is quite OK. Do any other members want to come in —.

Mr Laverty: Sorry, Chair. As I understand it, you have some questions and queries around Part 2 of the Bill, which relates to children's bail and custody. We are due to have officials available to speak to the detail of that next week. If there are questions on any other parts of the Bill or any of the remaining amendments, we can make policy leads, myself included, available to talk to the detail of those, if you let us know what those areas might be. Does that sound good?

The Deputy Chairperson (Ms Sheerin): Yes. Thank you very much. Thanks for coming before us again. Apologies for delaying you for so long at the start. I appreciate your patience.

Mr Laverty: I would rather that we were here and available than the reverse.

The Deputy Chairperson (Ms Sheerin): It is better to be looking at you than for you. [Laughter.]

Mr Laverty: I wish that I could believe that, Chair. Thank you very much. See you next week.

The Deputy Chairperson (Ms Sheerin): No bother.