Scottish Biometrics Commissioner Bill: Stage 1

Part of the debate – in the Scottish Parliament at on 9 January 2020.

Alert me about debates like this

Photo of Jenny Gilruth Jenny Gilruth Scottish National Party

I start by thanking the clerks to the Justice Committee, the bill team and the witnesses from whom the committee took evidence ahead of today’s debate.

As we have heard, “biometrics” is the technical term for a strand of biology that applies statistical analysis to physical measurements. Many of us use biometrics every day, from entering this building to unlocking our mobile phones using facial recognition technology. As the stage 1 report notes, over the past 30 years, this type of technology has become key in detecting and prosecuting crime. Indeed, because biometrics are non-transferable and difficult to falsify, their growing importance in the justice system cannot be underplayed. Advances in technology have created many benefits for our modern-day justice system, and the role of the new independent commissioner has therefore become of essential importance in overseeing the use of personal information by the police, in addition to helping to maintain public trust in its ethical use. As the committee notes, the creation of that role is both timely and necessary.

As was mentioned by Shona Robison, the need for a biometrics commissioner, independent of the Government, was also a key recommendation in the 2018 independent advisory group’s report, which said:

“There should be legislation to create an independent Scottish Biometrics Commissioner. The Commissioner should be answerable to the Scottish Parliament, and report to the Parliament. The Commissioner should keep under review the acquisition, retention, use and disposal of all biometric data by the police, SPA and other public bodies.”

Although technological advances in biometrics have undoubtedly brought huge benefits to policing, they have also created challenges for Governments globally, as it can be difficult for legislation to keep pace. In its briefing ahead of today’s debate, Amnesty International says:

“effective regulation of these technologies is a significant challenge that governments across the globe are grappling with as technology evolves faster than regulatory frameworks—and we remain open minded about how best effective regulation can be achieved to ensure all biometrics technology use is in line with international human rights”.

As Rona Mackay mentioned, on the issue of human rights, HMICS asserted that the role of the commissioner creates an opportunity in Scotland to

“explore emerging human rights and ethical considerations around the use of biometric data”.

The Commissioner for the Retention and Use of Biometric Material summed up the challenges of new technological advances in his 2018 annual report. He said:

“We are seeing the rapid exploration and deployment by the police of new biometric technologies and new data analytics. Some of these will improve the quality of policing and will do so in a way that is in the public interest. However, some could be used in ways that risks damaging the public interest, for example by re-enforcing biases of which reinforcement is not in the public interest. If the benefits of these new technologies are to be achieved there needs to be a process that provides assurance that the balance between benefits and risks and between benefits and loss of privacy are being properly managed.”

The committee asked the Government to consider how a perceived lack of debate and transparency in relation to the use of biometrics across Scotland might be addressed. The Government’s response accepts that the commissioner

“as an independent office-holder will, once appointed, be best placed to lead any debate on the level of transparency on the use of biometrics for criminal justice and police purposes”.

The financial memorandum states that the commissioner’s role will be part-time—estimated to be 0.6 full-time equivalent—and that the commissioner is to be supported by three full-time staff. In evidence sessions, the committee heard debate as to whether the position should be enhanced to a full-time role. Detective Chief Superintendent Sean Scott advised that

“It will be an extremely busy role; it is a burgeoning area of business and there is so much to do ... Extending the code of practice into other areas will be a huge task, so full time might be the best option.”—[Official Report, Justice Committee, 29 October 2019; c 12.]

However, Tom Nelson, the director of forensic services at the Scottish Police Authority, advised that, although a full-time role was in operation in England, that individual’s role covers 43 forces. He concluded that

“0.6 of a full-time equivalent is probably reasonable ... given the size of Scotland compared with England and Wales.”—[Official Report, Justice Committee, 29 October 2019; c 12.]

In response to my line of questioning, Mr Nelson also explained that a lot depended on the level of staffing available to the commissioner. I raised that issue with Professor Paul Wiles, who said:

“I think that the role will be part time due to a combination of the amount of time that the commissioner is envisaged as providing and the extent to which his or her office can help in that process ... It is a team effort rather than just that of a single person.”—[Official Report, Justice Committee, 24 September 2019; c 9-10.]

As Liam Kerr mentioned earlier, the need for public confidence and trust in the use of biometrics by the police and criminal justice system is essential. The committee recommended that

“the Scottish Government includes a complaint mechanism within the Bill, to enable the public to refer issues to the Scottish Biometrics on the use of biometrics by Police Scotland and the SPA, or on their lack of compliance with the Code of Practice.”

However, I note from the Government’s response its assertion that, as the commissioner’s role is

“intended to be one of strategic oversight rather than resolution of individual complaints”,

the responsibility should instead rest with the Information Commissioner’s Office. The Government also mentions the development of

“a fully comprehensive communications strategy, which would help the public understand the Commissioner’s role.”

That is welcome.

As we have heard today, the evidence that the Justice Committee received on the establishment of the biometrics commissioner has been broadly supportive. As the Commissioner for the Retention and Use of Biometric Material, Professor Wiles, stated, the bill places Scotland at the forefront of legislating for the oversight of biometric data in criminal justice.

On that positive note, I conclude my speech.