Chamber and committees

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.

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.

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.

I will have to ask Chris Nicholson, with his legal mind, to come in again, but I think that the Law Society was keen to emphasise that some issues involved in this area are devolved, and those references to examples of devolved areas were made simply to explain its recognition that this is an area that crosses between devolved and reserved areas. People might think that trade is reserved, and many aspects clearly are—particularly in relation to maritime industries—but private transactions and other aspects, such as the ones that you have just highlighted, are devolved.

The bill certainly smoothes trade. It makes sense for the same laws to apply in common trading areas. Removing the obligation to use paper is clearly in the interests of trade in Scotland, England, Wales and Northern Ireland, so it is a sensible option.

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.

The main sticking point was the lack of recognition of the ability to give Scottish ministers delegated powers in devolved areas. That was, in essence, ignored so that UK ministers could override and intervene in devolved areas. Members will all be aware of examples where, for many other pieces of legislation, that has occurred much more controversially and with much more political argument. In this situation, we are dealing with law reform, and the reason why the bill has been expedited in the House of Commons is that Law Commission of England and Wales recommendations in relation to law reform are uncontroversial and technical. That is the background.

In the bill, there is a list of documents that are affected. I am just working through my papers to find the list—I thank David Barnes for handing it to me. In clause 1(2), there is a list of examples, which include

“a bill of exchange ... a bill of lading ... a ship’s delivery order ... a warehouse receipt ... a mate’s receipt ... a marine insurance policy ... a cargo insurance certificate”

and so on. Perhaps, from a legal perspective, Chris Nicholson would like to comment on how wide the list will go.

Private transactions are devolved but, clearly, a lot of this interacts with reserved areas. It is a very complex area because it has been built up over hundreds of years of commercial trading. One of the key points in supporting the LCM is that, if we were to get into an argument over what is devolved and what is reserved, we could be here for years. It would mean untangling hundreds of years of commercial trading to ascertain exactly what is reserved and what is devolved. That is why the bill recognises customs that have built up over time—custom and practice. As I said, Chris might want to talk about the technical detail.