Chamber and committees

The provisions that we are discussing today impact on public services’ sharing of information. Eilidh McLaughlin’s role is to oversee that in her own sphere, so I will bring her in in a second or two. The wider general data protection regulation issues are reserved to the UK Government, and that is a different part of the bill. Our provisions relate not to that but to the devolved bits.

Good morning and thank you for giving me the opportunity to discuss the legislative consent memorandum and subsequent supplementary LCM for the Data Protection and Digital Information Bill. This is a UK bill that seeks to amend the current data protection framework and improve digital information services. There are four areas of the bill for which consent has been requested. Those areas will help us to work towards delivering a key ambition for the Scottish Government, which is to ensure that Scotland becomes an ethical digital nation where people can trust public services to respect privacy and be open and honest about the way in which data is being used. We want to maintain that commitment and to build public services in the digital domain that are inclusive and practical.

The provisions that enable digital verification will mean that people can choose to use that method to prove things about themselves in order to access a service. A trusted identification provider could, for instance, check against data that is provided by a consumer to the Department for Work and Pensions or His
Majesty’s Passport Office, such as when a customer is booking a flight or using a financial service, to help make that transaction more efficient for the customer. Customers will benefit from the smart data provisions when they are seeking lower prices or tariffs for energy bills perhaps. Smart data schemes will empower customers to make better use of their data in order to enable accurate tariff comparisons, compare deals and switch suppliers. The amendments to the Digital Economy Act 2017 mean that enterprise agencies will be able to better target businesses to help them to comply with any relevant law, grow their business and engage in trade activities, and to create green and sustainable businesses.

Police information-sharing agreements could help to mitigate the loss of law enforcement information that was caused by leaving the European Union. For example, an agreement with the EU or EU member states could include real-time alerts on wanted or missing persons, which would allow Police Scotland to know that someone whom the police are questioning at the roadside is also wanted in connection with a serious crime in the EU, or that someone who is found in a vulnerable position in Scotland was recently reported missing on the continent. Consenting to the bill will ensure that the people of Scotland do not miss out on the benefits of such measures, whether as consumers or when interacting with public services.

Finally, the sharing of law enforcement data is vital to ensuring that Scotland’s law enforcement agencies are able to cooperate with our counterparts in the UK and Europe following our exit from the European Union. Ministers and officials from the Scottish Government have engaged regularly with our UK counterparts over the past two years to ensure that our concerns about the bill have been heard. We have stressed to the UK Government our view that the bill’s benefits to organisations should not come at the expense of the rights of individuals and the continued adequacy decision from the European Commission, which is about allowing for easy flow of personal data from the UK to the EU.

Thanks for the opportunity to make some opening remarks. My officials and I—I hope that it will be mainly my officials—will be happy to answer any of your questions.

Yes, we will certainly do our best to keep Parliament up to date with anything that we become aware of. You will perhaps recall that I have come before the committee several times, with various ministerial hats on, to talk about some of these negotiations over the LCMs and about what we can and cannot support in relation to UK secretaries of state retaining power to intervene without consulting the Scottish Government.

We have to take a decision sometimes. In this case, of course, we have got a concession whereby Scottish ministers have a role and were added in to what was originally clause 93—I think that it is now clause 99. We have to weigh up the benefits and disbenefits; we took the view that, overall, in supporting this, there are more benefits than would otherwise be the case.

Not at the moment, because the thrust of the legislation is to make a sensible move from paper to electronic trading, and it has been ensured that the interests of devolution are protected in the bill should something arise in the future whereby Scottish ministers feel that they have to intervene. We are not predicting any particular scenario at the moment, but it is important to protect the principle that, because parts of the trading environment are devolved, the Scottish ministers retain the legal right to intervene.

Chris Nicholson would like to add something.

I can speak only from previous experience in ministerial roles, when I dealt with many LCMs. Generally speaking, we listen to stakeholders, consider the impact of the LCM and judge each one on its merits.

In the past, I have supported many LCMs because it has made sense to allow the UK Government to take something forward. I have done that for a range of reasons. Sometimes it has been because there is no point in duplicating effort and the LCM has enabled benefits to be delivered more quickly, and sometimes it has been because we would have done the same thing anyway. There are different reasons, but clearly there are many disputes in other areas, because the Parliament ultimately has to defend devolution. I am sure that it is the view of the committee that there will be times when compromise is appropriate and times when it is not appropriate, because devolution has been undermined. It is dealt with on a case-by-case basis.

If secondary legislation were used, the process of scrutiny would involve the Parliament’s committees. There are also wider policy implications in relation to how we work with trade, moving from paper to electronic format. It is quite difficult to predict any scenarios.

The UK Government has said that it is unlikely to use the powers that it is retaining except in extreme circumstances. For instance, the amendments tabled by the UK Government are not perfect, although they move us much further forward in relation to a recognition of the role of Scottish ministers in devolved matters, but the UK Government has retained the ability to disapply certain parts of the bill in extreme circumstances. For example, if there were a cyberattack or if information technology systems were to fail and a decision was taken that we had to revert to paper for certain trade documents, the UK has said that it would use those powers—but only under those circumstances. We would have to respond to that at the time.

It is against that comforting background that we are not too concerned about there being many further interventions in terms of changes—but who knows?

Thank you very much, convener, and good morning, committee. It is nice to join you this morning.

Thank you for the opportunity to discuss the LCM on the Electronic Trade Documents Bill. As you will be aware, the Government is committed to ensuring that Scotland is a successful trading nation, and we want to create the best possible conditions for our businesses to operate within.

One way of doing that is by harnessing advances in technology, so we are committed to taking advantage of technology-based improvements and to modernising trade processes and practices for Scottish enterprises and, in doing so, delivering benefits for the people of Scotland. It is therefore vital that the Scottish legal system is tailored to helping us to realise those ambitions, to providing a competitive platform on which our businesses can operate and to supporting the businesses of tomorrow that we want to create and ensuring that they are adapted to the modern world.

The Electronic Trade Documents Bill is designed to do just that. It brings trading processes into the 21st century by giving electronic documents used for trade purposes the same legal standing as paper documents. That simple and commonsense measure will immediately remove burdens for businesses that choose to operate in a more digital way and will create a more streamlined and modern trading system—something that Scottish businesses should be able to take advantage of in the future.

The bill has been brought forward by the Law Commission of England and Wales in recognition of the fact that this area of law is in need of reform. Not only has there been significant engagement with Scottish legal and academic stakeholders, but the bill has gone through an expedited process at Westminster, given its highly technical and uncontroversial nature. We, as a Government, therefore support and welcome the bill’s policy intentions, which align squarely with our ambitions for the future of the trading landscape in Scotland.

I should say that, unfortunately, despite our views on the bill’s policy intentions, the Scottish Government could not support it as introduced, due to the drafting of the delegated powers. As drafted, the bill conferred powers on UK ministers to make secondary legislation in areas of devolved competence and gave them the ability to, for example, unilaterally disapply parts of the bill’s regime in Scotland in devolved areas, so that paper documents would once again be needed. UK ministers would be required to consult Scottish ministers, who might express concern or disapproval but could not prevent the UK Government from legislating in devolved areas. Therefore, the Scottish Government has spent considerable time defending the interests of the Scottish devolved institutions and negotiating with the UK Government to secure amendments to the bill.

The process has been constructive, although it has also been a lengthy one, which led to a delay in lodging the LCM. I apologise to the committee for that delay. I stress that my officials and I recognise the important role that the committee plays in the LCM process. With the benefit of hindsight, had we known that it would take so long to conclude the discussions with the UK Government, we would have lodged an LCM much earlier.

I am pleased to report that amendments to the bill have now been tabled by the UK Government and we anticipate that they will be voted through in the coming days without any concerns being raised. Yesterday, therefore, the Scottish Government was able to lodge a supplementary legislative consent memorandum with the Scottish Parliament, recommending consent to the bill on the basis of those amendments. I am hopeful that those developments will enable us to secure the benefits of the bill: modernising our trade processes and delivering benefits to Scottish traders, those who trade with us and the economy overall.

Once again, I thank the committee for its time. We will do our best to answer any questions.

Yes, and the bill has been amended to give delegated powers to Scottish ministers to intervene and act in devolved areas if they think that they have a reason to do so.

Thank you.

That is what we anticipate and what we have been assured of by the UK Government. I will, of course, undertake to keep the committee informed should anything arise in relation to that.