Justice Committee

Meeting date: Tuesday, November 13, 2018

Official Report 808KB pdf

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Counter-Terrorism and Border Security Bill

Agenda item 3 is consideration of a legislative consent memorandum on the Counter-Terrorism and Border Security Bill. I refer members to paper 3, which is a note by the clerk, and I invite the cabinet secretary to make a short opening statement on why he is seeking the Parliament’s consent. I will then invite questions from members.

The Counter-Terrorism and Border Security Bill was introduced by the Home Office on 6 June. As its title suggests, the majority of the bill relates to reserved areas of national security with provisions that apply across the UK. However, there are three areas that we consider to have implications with regard to devolved competence. Following the incidents in London and Manchester last year, the Home Office undertook a review of counter-terrorism legislation and policy. The outcome of that review, which included the introduction of the bill, has been broadly welcomed as a considered approach to those terrible incidents. Since then, there have been despicable acts in Salisbury and further consequences in Amesbury. In response to those incidents, the bill contains further powers to stop, question, search and detain individuals at the United Kingdom border to determine whether they have been involved in hostile state activity.

We consider that three specific areas of the bill require consent. The first is clause 15, which amends the Road Traffic Regulation Act 1984 to enable traffic authorities, including the Scottish ministers, to impose cost recovery charges for making anti-terrorism traffic regulation orders. Secondly, the Scottish Government requested that the bill make amendments to legal aid legislation to ensure that persons who are detained at the border under terrorism legislation have the right to non-means-tested advice and assistance. Those changes are within the legislative competence of the Scottish Parliament, but they were requested as there is no legislative vehicle available within an appropriate timescale that would ensure that consistency is maintained across the United Kingdom.

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Thirdly, clauses 18 and 21 and their associated schedules will enable certain biometric material to be kept for longer and potentially to be used for devolved purposes. As the Scottish Parliament could enact similar provisions to extend the retention period for biometric data for devolved purposes, it is considered that those clauses require legislative consent. The safety and security of the people of Scotland is of paramount concern for the Scottish Government, and the bill rightly faces scrutiny in the UK Parliament with regard to whether its impact is appropriate and—importantly—proportionate. We will continue to engage with the UK Government on those matters as the bill progresses. The clauses for which we seek the committee’s support today enable national security legislation to be applied consistently across the UK. I am happy to take questions.

Thank you. Are there any questions from members?

I am grateful to the cabinet secretary for mentioning the terrible events in Salisbury, because it is important to understand the background to part 2 of the bill in particular. However, I have a number of concerns regarding the bill. I have asked you and your predecessors the following question on a number of occasions. The investigation of crime in Scotland is the responsibility of the Lord Advocate. Will he be in charge of investigations under this proposed legislation?

I have not had any feedback from the Lord Advocate that would suggest that any of the measures in the bill raise specific concerns for him in that they would extend over his jurisdiction and remit. I acknowledge that concerns have been raised about the bill, and I have no doubt that organisations and members of Parliament will continue to robustly address some of the areas that may require consideration. When I spoke with my counterpart minister south of the border, he said that the Government was in listening mode in response to some of the concerns and that it would potentially bring forward changes to the bill.

I have not had any direct representations on the bill. I look to my officials to say whether they have had any representations from the Lord Advocate or the Crown Office on any of its provisions.

We have not had any direct involvement with the Lord Advocate or the Crown Office on any issues that may relate to the investigation of crime. The bill maintains the current position: the Lord Advocate would be in charge of any investigation of crime in Scotland, as he is under current legislation.

In general, the Crown Office has welcomed the provisions that relate to some of its areas of competence. With regard to any intervention in relation to some of the offences that the bill seeks to create, we talked to the Crown Office at earlier stages of the legislation about whether it felt that those provisions were necessary and proportionate to address the terrorist threat that we are currently experiencing.

Cabinet secretary, can you say whether the extension of the notification requirements to persons who are convicted of terrorism-related offences in the north of Ireland will apply retrospectively?

I look to my officials for advice, but I suspect not.

From our conversation with the Home Office, we understand that nothing in the bill will be retrospective, including the provision to which John Finnie refers.

With regard to the retention of biometric material, the text of the legislative consent memorandum before us states that the bill will

“strike a better balance between enabling the police to use fingerprints and DNA to support terrorism investigations and continuing to provide proportionate safeguards for civil liberties.”

Can you outline where the appropriate safeguards for civil liberties can be found?

My understanding is that the Commissioner for the Retention and Use of Biometric Material broadly welcomes the provisions in the bill. The Scottish Government is committed to the introduction of a biometrics bill, which would be debated in this Parliament as any piece of legislation would, but it is important that we ensure that those checks and balances also exist in areas in which we have devolved competency. There are checks and balances in place, of which the biometrics commissioner is one example, and I understand—again, I look to my officials on this—that, in general, he welcomes the bill’s provisions.

As far as we understand the situation from our conversation with the Home Office, the biometrics commissioner has been consulted and welcomes the provisions. Indeed, the bill will enact three of the recommendations that the commissioner made in his most recent report in 2017. One of those relates to an extension of the period of time for which national security determination biometrics can be held. The period can currently be extended every two years, which creates some bureaucracy, and the commissioner felt that there was no clear reason not to extend the absolute maximum time limit to five years. That does not mean that people will not necessarily seek shorter extensions, but he felt that it was appropriate that people could go for one extension rather than have to come back three or four times during the same period. Similarly, he felt that it was appropriate to enable chief officers in England and Wales to have a single national security determination for multiple different pieces of material. Again, the reasons for retention are not changing; the issue at present is that chief officers have to come to the commissioner on a number of occasions to seek further retention periods.

The reasons for retention are changing. The LCM states that

“biometric material is available … for general policing purposes”.

The cabinet secretary used the specific phrase “devolved purposes”. These are serious extensions and serious intrusions. The argument for the changes that we seem to be hearing is that they are administratively more convenient. I am certainly not persuaded by that, not least because I believe that the information will be shared and put on the national database. Is that correct?

As things stand, a person’s biometric data may be retained when it would otherwise be destroyed if a chief constable determines, under the national security determination, that that is necessary. Any extension of a retention period that is not related to national security determination must be approved by the sheriff court; that is an important part of the checks and balances.

I agree with John Finnie that there are issues with biometric data and so on, and we have to give people as much confidence as we possibly can on such issues. The bill is subject to parliamentary debate, and amendments to it will undoubtedly be lodged to ensure that the measures are proportionate and that checks and balances are operating in the right space. However, I recognise that there are organisations that will want the Scottish and UK Governments to go further in that regard.

I have a specific question on the police national database, where the information will be stored. Is it not the case that there are errors on that database, including human rights violations, which stand uncorrected?

Sorry—what was the latter part of your question?

I said that there are errors on that database, including human rights violations that I understand may relate to photographic evidence, which have not been corrected. Our obligation is to scrutinise and understand the purpose of legislation. Everyone would want an end to violence and the use of maximum proportionate means to address such issues, but the situation has moved on significantly from where it was when you and I sat on the Justice Committee in the previous session of Parliament. We are now looking at much less modest proposals; the provisions in the bill constitute a significant intrusion.

I do not doubt John Finnie’s perspective—there is no need to caveat that. I absolutely accept that he shares with all of us the desire to keep Scotland safe. Questions are rightly being asked about whether the bill strikes a proportionate balance between liberty and security. However, it seems to me—I take a slightly different view from John Finnie—that the bill is much more proportionate than previous UK Government legislation in the anti-terror space.

Again, I emphasise that the specific issues and concerns around checks and balances to which John Finnie refers will be debated in Westminster. I know from talking to the UK Government—he can seek his own reassurances on the matter—that it is open-minded about potential amendments to the bill to give confidence on those issues. From a Scottish perspective, an LCM is needed on three specific issues to provide a level of consistency for legislation that I believe is, by and large, proportionate. Nevertheless, questions are rightly being asked; I do not take that away from John Finnie.

I do not take any issue with the traffic regulation aspect. In addition, I warmly welcome the legal aid aspect and would like those provisions to be rolled out beyond simply those who are accused of such offences.

Finally, cabinet secretary, would you support an independent review of the prevent strategy?

Again, that issue has not been raised with me specifically as Cabinet Secretary for Justice in Scotland. As someone who has interacted with the prevent strategy and the way in which it has been rolled out in Scotland since I was a boy—well, perhaps not quite a boy, but certainly when I was younger—I always thought, from speaking with my friends who lived south of the border, that we did it differently here. I think that it is recognised that we enact our prevent strategy in Scotland in a way that is more community focused. I have not seen a request for an independent review in a Scottish context—

I am making one now, cabinet secretary.

I will give careful consideration to anything that John Finnie says. If he will allow me, I will consider his request, but it is not something that I am persuaded by at present.

Thank you.

John Finnie has asked many of the questions that I had. A glance at what is being proposed in the bill suggests that it raises issues around human rights considerations. Although I understand the reasons behind some of the measures—for example, the provision that covers expressions of opinions or belief regarding proscribed organisations—the bill raises some human rights issues. I recognise that those aspects are part of the reserved elements. However, as John Finnie rightly pointed out, the provisions on biometrics, which is a devolved area, again raise human rights issues.

Is the cabinet secretary aware of whether the UK Government has carried out a human rights assessment on the bill in its entirety? Has the Scottish Government carried out a human rights assessment on the biometrics element? If it has not, will it commit to undertake to do so?

I cannot answer for the UK Government, and I am not aware of any process that would have gone above and beyond what it would normally do for a proposed piece of legislation. Perhaps my officials can come in on that. I am more than happy to speak to our human rights organisations and engage with them on whether they have particular reservations about the devolved competences in the bill—I can commit to do so. I have not had many approaches or much correspondence on the bill from organisations. Nevertheless, I am happy to ask the question.

I ask my officials whether they have anything to add.

As far as we are aware, the Home Office undertook what is pretty much its standard human rights impact assessment for a bill. I understand that the UK Parliament has taken a number of pieces of evidence from human rights agencies, but we have not had anything from any Scotland-based agencies that relates directly to any of the issues that we are discussing today.

Given that you understand that the UK Government has undertaken a human rights assessment for the bill in its entirety, would it not be better for the Scottish Government to look proactively at the elements that will be devolved and undertake a human rights assessment on those elements? Surely it is not sufficient for us simply to wait for approaches from human rights organisations. We have only to look at the issues in relation to the roll-out of cyberkiosks by the police to understand the deficiencies that arise in the criminal justice sphere when a full assessment of the human rights impact is not carried out.

Whenever an issue comes before me and my officials, I question it robustly and we have conversations about where we might have concerns. The three areas in which we are requesting an LCM do not give me a huge amount of concern, because I am aware of each of the issues. From my previous role as Minister for Transport and the Islands, I know about ATTROs, and I think that the bill offers a proportionate response with regard to recouping some of the charge. On biometrics, work is being done south of the border to ensure that there are checks and balances, and we are introducing legislation on that front. The bill’s provisions on legal aid are very sensible, and the LCM will ensure that there is a level of equity in that respect.

The provisions in areas of devolved competency, for which I am responsible, do not raise huge human rights concerns for me. I am happy to have a conversation with organisations to see whether there are concerns, but I do not currently have any concerns myself.

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Forgive me, cabinet secretary, but I need to press that point. The matter goes beyond simply having conversations. The point of human rights assessments is that we do them consistently, every time, to ensure that we have got it right. It is not good enough simply to rely on the fact that previous work has been done, that positions have been created or that other elements are in place. When such questions are raised—the biometric element certainly raises them—we need to undertake a full human rights assessment to ensure that there are no unintended consequences or aspects that have not been fully considered. It is certainly not good enough to rely on external organisations to approach the Scottish Government or to rely on previous work. A specific assessment has to be carried out.

We will take that away and reflect on it. As I said, I believe that the provisions in the LCM are eminently sensible, and I am content with the checks and balances that remain in place. I think that the provisions in the LCM, in particular with regard to legal aid, allow us to bring equity to the system. That does not take anything away from what Daniel Johnson says; it would be interesting to hear his specific concerns from a human rights perspective on the issues that are being debated today in respect of the LCM. However, I am content that the provisions are proportionate.

John Finnie and Daniel Johnson have laid out very well the concerns that I had when I read the papers for this meeting. We are always conscious when we are dealing with a statutory instrument or an LCM that the scope for getting into the detail of the provisions is more limited.

At one level, I am reassured. I know that colleagues at Westminster will be kicking the tyres, and will have been doing so since the bill was introduced in June. However, with regard to the devolved aspects, I take Daniel Johnson’s point that we should not simply wait for potential concerns to be raised. The fact that the provisions appear to be more proportionate is reassuring, but it should not preclude the need to proactively undertake impact assessments. A human rights impact assessment is no less fallible than an environmental or business impact assessment, but it helps to minimise the risk of unintended consequences. I therefore think that it would be good practice to carry out such an assessment, given the potential far-reaching nature of the provisions.

I do not dispute that, as the cabinet secretary said, the bill appears to be cast in more proportionate terms than previous legislation. However, we should not necessarily deviate from an approach that gives us as much reassurance as possible in terms of the devolved aspects.

There is not much for me to add, other than to say that I will reflect on the need for best practice. Again, I would be keen to hear any specific issues that relate to the areas of devolved competency for which we are asking legislative consent. I believe that the provisions are proportionate, but that does not take anything away from what Liam McArthur said in relation to best practice.

There are no further comments and questions. Do members agree that we give our consent?

Members indicated agreement.

I see that John Finnie wishes to record his dissent.

I understand that the committee will produce a short report on the LCM; if my dissent were noted, I would be satisfied with that—thank you.

We record John Finnie’s dissent. Is the committee happy to delegate to me, working with the clerks, the publication of a short factual report, and to give John Finnie a reassurance that his comments will be noted in the report?

Members indicated agreement.

Thank you, convener.

John Finnie clearly wishes to voice dissent. If the report also captures the substantive points that Daniel Johnson made and which I would echo, that would be helpful.

One way of handling that would be for the committee’s report to provide a link to the Official Report, which will contain the full discussion rather than a summary. Would that be satisfactory?

Okay.

Okay.

We are all agreed. That concludes item 3. I thank the cabinet secretary and his officials for their attendance.