Meeting of the Parliament

Meeting date: Tuesday, December 4, 2018

Official Report 1234KB pdf

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Counter-Terrorism and Border Security Bill

The next item of business is consideration of a legislative consent motion. I ask Humza Yousaf to move motion S5M-15017, on the Counter-Terrorism and Border Security Bill.

Motion moved,

That the Parliament agrees that the relevant provisions of the Counter-Terrorism and Border Security Bill, introduced in the House of Commons on 6 June 2018, relating to anti-terrorism traffic regulation orders, the retention of biometric material and legal aid, so far as these matters fall within the legislative competence of the Scottish Parliament or alter the executive competence of Scottish Ministers, should be considered by the UK Parliament.—[Humza Yousaf]

I call Adam Tomkins.

16:53  

In October last year, Andrew Parker, the director general of MI5, described the on-going terrorist threat that faces the United Kingdom as

“multi-dimensional, evolving rapidly, and operating at a scale and pace we’ve not seen before.”

Attacks such as that at London bridge in June last year or the novichok poisoning in Salisbury earlier this year are just two illustrations of what Mr Parker was talking about.

Against the background of that heightened terrorist threat, the UK Government considers it necessary to update and strengthen key aspects of the legal powers and capabilities that are available to law enforcement and intelligence agencies to disrupt terrorism and to ensure that sentences for terrorism offences properly reflect the seriousness of the crime. Conservative members strongly support that judgment and the Counter-Terrorism and Border Security Bill, which arises from it and which is the subject of today’s legislative consent motion.

Most of the bill concerns matters that are properly reserved to Westminster, but a minority of its provisions touch on devolved matters, particularly road traffic regulations, legal aid for those stopped at the border and the retention of biometric material.

I welcome the fact that the Scottish Government recommends that Parliament’s consent be given to those provisions. I agree. As the legislative consent memorandum says,

“Ensuring that these measures are consistently applied and available across the UK is important to maintaining the operation of counter-terrorism measures.”

Of course it is.

The measures to be taken in the bill, and in particular the measures that attract the request for our consent today, are necessary to safeguard our national security and are proportionate. In particular, it will still be the case after the bill is passed that biometric data will be destroyed unless there is a sound basis for retaining it. Operational experience has shown that the two-year retention period is too short, which is why the bill extends it to five years.

Likewise, the power to detain and question individuals at the UK border is plainly required. The power in the bill is carefully constrained so that it will apply only on grounds of involvement in hostile activity for or on behalf of another state. The decision to stop and question an individual will not be arbitrary; it will be based on informed consideration of risk, threat, hostility and intelligence.

In short, the powers are necessary and proportionate. The Government is right to support them, and we should all do so, too. I support the motion.

16:56  

The matter was discussed at the Justice Committee on 13 November. Of course it is important to have consistent application of legislation, but legislation must be fair and equitable, and it should certainly not be trialled by The Daily Telegraph, as is the inference from the powers that the UK Government seeks to put in place.

Three powers apply to Scotland, in relation to traffic regulation orders, legal aid and the retention of biometric material. On traffic regulation orders, it is good that the local authorities will be reimbursed. On legal aid, it is great that people who are accused are to be given non-means-tested advice and assistance. Please can we extend that provision?

The issue is the retention of biometric material. The legislative consent motion states that the bill will strike “a better balance”. That better balance was not evidenced at the Justice Committee by the cabinet secretary. We heard from an official that chief officers in England and Wales have gone to the biometrics commissioner on a number of occasions to seek further retention periods—I bet that they have.

The reasons for retention are changing. The LCM tells us that biometric material is available for use for “general policing purposes”. The cabinet secretary used the term “devolved purposes”. Those are serious extensions and serious intrusions. The argument for change that we seem to be hearing is that the provisions are administratively more convenient. I am certainly not persuaded by that, not least because I believe that information will be shared and put in a UK national database—a UK national database with errors. I understand that there may have been human rights violations in relation to photographic evidence that has not been corrected.

Our obligation is to scrutinise and understand the purpose of legislation. Everyone wants to see an end to violence and the use of maximum proportionate means to address such issues. However, that approach would be underpinned by a human rights assessment, and my questions to the cabinet secretary are: has one been compiled and published and, if so, who consulted on it? Either way, the case has not been made. The Scottish Green Party will not support the motion.

16:58  

I thank both Adam Tomkins and John Finnie for speaking on this legislative consent motion, and the Presiding Officer for the opportunity to respond.

The Counter-Terrorism and Border Security Bill is just one part of the UK Government’s review following the terrible incidents in London and Manchester last year. As one would expect, and as has been mentioned, the majority of the bill relates to the reserved area of national security and is rightly being scrutinised by the UK Parliament.

However, the three areas mentioned by Adam Tomkins and John Finnie have implications for devolved competence. The Justice Committee, and John Finnie today, raised concerns about provisions that relate specifically to the retention of certain biometric material. I will not speak to the other two points, because there is broad agreement about them.

For clarity, the type of biometric material that can be the subject of a national security determination is defined in the Criminal Procedure (Scotland) Act 1995—namely, fingerprints or DNA. The definition does not include secondary biometrics, such as images.

Let me be clear: the Scottish Government does not take lightly its responsibility with regard to ensuring that biometric data is only ever retained in circumstances in which such an intrusion on an individual’s rights is proportionate and appropriate.

Will the cabinet secretary take an intervention?

If the member does not mind, I want to make progress—if only because he said that he would vote against the LCM regardless of what I say.

In response to the recommendations of the independent advisory group on the use of biometric data in Scotland, which we convened, we will introduce a bill to enhance oversight of biometric data. That bill will, rightly, be scrutinised by this Parliament.

It is important to acknowledge that today we are considering the impact on devolved competence of the narrow circumstances under which specific biometric data can be retained. The provisions in the Counter-Terrorism and Border Security Bill change the existing maximum retention period from two to five years; it is important to note that there are no proposed changes to oversight or safeguards in relation to the retention of data, which will still be subject to review by the Commissioner for the Retention and Use of Biometric Material. Indeed, the proposed change was recommended by the commissioner in the annual report that he published in April.

On John Finnie’s concern about databases, I reiterate that the data in question is that which is defined in the Criminal Procedure (Scotland) Act 1995 and does not include images. Biometric data that is subject to national security determination is stored in a number of national databases, none of which is the police national database.

I share Mr Finnie’s concerns about the issues that have been raised, not least in the recent court judgment that was critical of the governance arrangements for images.

I heard Mr Finnie rightly ask about a human rights assessment. Labour members are minded to support the Government on the LCM, but the point about a human rights assessment is important. Will the cabinet secretary answer the question and say whether such an assessment has been made?

I was coming to that point. I wanted first to address Mr Finnie’s question on databases. We take that issue extremely seriously. We will watch how the bill progresses through the UK Parliament—and it almost goes without saying that Scottish National Party members of that Parliament will be involved in the scrutiny of the bill, as they have been up to this point.

I was asked to reflect on the need to undertake an impact assessment on the specific issues on which we seek legislative consent. I acknowledge the concerns that organisations and individuals have raised about the bill in its entirety and I welcome the scrutiny that the bill rightly faces in the UK Parliament, but I do not consider it appropriate for the Scottish Government to undertake an impact assessment on a UK Government bill, the majority of which is within reserved competence.

I recognise the concerns of the committee and John Finnie, and I agree that the bill needs to be properly scrutinised, to ensure that any impact is necessary and proportionate. That scrutiny will happen in the UK Parliament, where the bill in its entirety is being considered. The provisions that are under consideration in relation to the legislative consent motion give consistency to law enforcement in the UK and will ensure that Scotland is not at a disadvantage in tackling the terrorist threats that we face.

On Daniel Johnson’s point, I wrote to the committee and my official spoke to a number of human rights organisations. Although those organisations have concerns about the bill more widely, they do not necessarily have concerns about the narrow issues that we are considering in the context of this legislative consent motion.

The question on the LCM will be put at decision time.