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Chamber and committees

Meeting date: Wednesday, February 22, 2017

Meeting of the Parliament 22 February 2017

Agenda: Portfolio Question Time, Social Security, Motor Neurone Disease (Gordon’s Fightback Campaign), Digital Economy Bill, Business Motion, Parliamentary Bureau Motions, Decision Time, Industrial Strategy


Digital Economy Bill

The next item of business is consideration of legislative consent motion S5M-03925, in the name of Fergus Ewing, on the Digital Economy Bill. I call Fergus Ewing to move the motion.

Motion moved,

That the Parliament agrees that the relevant provisions of the Digital Economy Bill, introduced in the House of Commons on 5 July 2016, relating to the Scottish Ministers laying down fees and rules for the Lands Tribunal for Scotland in cases concerning the Electronic Communications Code and Part 5 (Digital government), so far as these matters fall within the legislative competence of the Scottish Parliament, or alter the executive competence of the Scottish Ministers, should be considered by the UK Parliament.—[Fergus Ewing]

I call Edward Mountain to speak on behalf of the Rural Economy and Connectivity Committee.


As convener of the Rural Economy and Connectivity Committee, I will make the following comments on the United Kingdom Parliament’s Digital Economy Bill legislative consent memorandum. The committee was concerned about the extremely tight timeframe that it was given for consideration of the memorandum. I say for the record that the committee received no advance notice from the Scottish Government that the memorandum was likely to be laid before the Scottish Parliament.

It appears that there are two areas of the bill for which the consent of the Scottish Parliament is required. The committee is satisfied with the first provision, which will allow Scottish ministers to lay down fees for the Lands Tribunal for Scotland to charge for hearing disputes under the electronic communications code.

However, in relation to the provisions in part 5 of the bill, on data sharing across public bodies, the committee was unable to examine the policy implications of the concerns that were raised by the Delegated Powers and Law Reform Committee. Furthermore, it believes that the data-sharing provisions would fall within the remit of other committees that have had no opportunity to consider them during the process.

The passage of this memorandum demonstrates, I believe, the limitations of the Scottish Parliament in respect of scrutinising LCMs within the very tight timescales with which committees are often presented. For that reason, the committee chose to note the memorandum rather than to pass comment on it. I will make no further comment, but I welcome the discussion that will be had on the subject.


I echo the concern about the timescale that has been allowed for scrutiny of the memorandum, which makes it especially difficult for committees to do their job and to ensure that legislation that comes to Parliament is fit for purpose.

The Delegated Powers and Law Reform Committee’s concerns about the memorandum echoed the concerns that the House of Lords expressed. We want adequate scrutiny of any proposals to share data between Government agencies to ensure that the powers are required and that the correct checks and balances are in place. We also seek assurance that such proposals would not breach human rights. On the other hand, I can understand how the powers could be used to improve services to individuals and wider society, and could be a useful tool for combating fraud.

I ask for confirmation that any such proposals will be subject to scrutiny in this Parliament, and that statutory instruments will be closely drafted, taking into account individuals’ human rights.

We welcome the parts of the legislation that deal with the Lands Tribunal for Scotland. Anything that helps to take technology into our communities is a good thing. I hope that having the Lands Tribunal settle disputes between digital communication companies and landowners will speed up dispute resolution. That will be welcome, especially in cases in which the landowner has no personal interest in improved communication and seeks to hold to ransom a communications company, and thereby the communities that it seeks to serve, through unrealistic prices for access to land.

Therefore, on the whole, the legislation will provide benefits, but as with all Government powers, we must have checks and balances in place. We look for reassurance from the Government that they will be in place when the subordinate legislation comes to Parliament.


The Liberal Democrats will vote against the legislative consent motion at decision time. I find it astonishing that the Scottish Government has brought it before us today. The legislative consent process was designed as a simple means to allow smooth passage of non-controversial legislation on devolved matters that could be dealt with by Westminster as a matter of convenience, with the consent of the Scottish Parliament.

Part 5 of Westminster’s Digital Economy Bill is highly controversial. For the benefit of members of the Scottish Parliament who have not been made aware of its contents, let me oblige. As the bill proceeds through the House of Lords, its Delegated Powers and Regulatory Reform Committee report said:

“we do not consider it appropriate for Ministers to have the power to decide by delegated legislation which authorities should be entitled to disclose or receive information under this potentially far-reaching and broadly drafted gateway”.

We should make no mistake—the powers will entitle Scottish ministers to decide who can receive and transfer information that is protected under data protection legislation. The bill that is going through Westminster has been described by that same committee as giving ministers Henry VIII powers of the Crown.

Is this the new Scotland of the 21st century that we all want? Scottish ministers should be embarrassed and Scottish National Party MSPs should have been asking serious questions of their Government colleagues. The situation is surely embarrassing for Scottish ministers. They know that if such a legislative change was brought to this chamber, where it could be properly examined, it would never see the light of day in the form that it is in now.

It is convenient for Scottish ministers to move the legislative consent motion. If it is passed tonight, it will allow Westminster to confer on Scottish ministers almost unfettered power to drive a coach and horses through our data protection legislation.

I address my next remarks specifically to SNP back benchers. I can almost hear them thinking, “No, our ministers wouldn’t do that.”


Well, SNP members should not believe that for a moment. If Scottish ministers are granted the power unchecked by our Parliament, they will use it—either they will, or their successors will. It might come as surprise to some people, but our current ministers will not be in power for ever—

Will the member take an intervention?

I would love to, but I have only 60 seconds left, so I cannot.

Members: Oh, go on.

I would love to—I would love to have a debate about the matter.

Even if SNP members think that our current ministers are benign, they cannot be sure that the next lot will be.

It is not good enough for the minister to say—as he might do in a moment—that the legislative consent motion is necessary in order to combat fraud. The ends never justify the means.

This is far too important an issue to be left to a simple legislative consent motion that will give power to Westminster to act on our behalf and transfer Henry VIII powers to Scottish Ministers. We are not doing our job as MSPs if we allow that to happen. What is the point of having a Scottish Parliament if we allow the matter to go through without any real scrutiny?

It is still not too late for the cabinet secretary to withdraw the legislative consent motion and let us deal with the issue ourselves, here in this Parliament. It is perfectly possible for him to do that, so I urge him to do so right now.


I will deal first with the issues that were raised by Edward Mountain and Rhoda Grant. I note the concerns from relevant committees about the lack of time that was available to consider the memorandum, and I acknowledge that it was lodged later than we would have liked. In mitigation, I offer the following points. First, prior to lodging it, I wrote to Mr Mountain—on 12 January; 41 days ago—informing him of a number of issues that we felt should be brought to his and the committee’s attention. That was an attempt to be helpful, and I hope that the attempt was successful.

In paragraph 5 of that letter, we said:

“We hope to lodge an LCM shortly.”

I acknowledge that the memorandum was lodged later than we would have liked. However, precisely because we were conscious of the complexity of the plethora of issues that are dealt with in the bill—I do not, to be frank, have time to go through them all—I specifically wrote a non-statutory voluntary letter to the committee, as a matter of courtesy and in order to be helpful, saying what we proposed to do.

Since the complex bill was introduced at Westminster, it has been necessary to discuss and pursue a range of amendments to it. The bill has undergone substantial amendment during its time in Parliament. It was therefore important that our memorandum to Parliament reflect as closely as possible not the initial proposals but the final proposals in the bill. I hope that that explains the lateness of its lodging. I stress that we take such matters seriously, so I want to give that assurance to the committee convener.

I can also provide an assurance in relation to the specific question that was asked, quite fairly, by Rhoda Grant. All regulations will be carefully drawn in a way that ensures that they do not breach any privacy rights, and this Parliament will have full scrutiny.

I was grateful to have had the opportunity to have a private word with Mr Rumbles about the matter that he raised a moment ago—I thank him for giving me some advance notice of his particular concerns.

Let me get straight to the nub of what concerns us here today. We have carefully considered one of the Delegated Powers and Law Reform Committee’s key suggestions, which was that the Scottish devolved public bodies that will disclose data to improve public service delivery, reduce fraud and tackle debt be named in the bill. However, we do not support that recommendation. We oppose it precisely because we wish to protect this Parliament’s role in scrutinising proposals for data sharing. For that reason, we have asked the UK Government not to table amendments that would name devolved Scottish public bodies in the bill.

However, there are occasions on which co-operation through sharing of data is necessary. Let me give two examples. First, with regard to supporting prisoners on release, the bill would allow Scottish ministers to put before this Parliament regulations to allow the Scottish Prison Service to share with the Department for Work and Pensions a specific and limited set of data that would allow for a benefits package to be in place on an individual’s release from prison, which would help with their on-going rehabilitation and contribute to the wellbeing of their families. That is a good thing.

A second example concerns tackling fraud. Regulations under the bill’s fraud provisions could allow Revenue Scotland to share specific data with other Government departments to help to reduce tax avoidance and evasion, and to help to maintain the tax revenue that is available to support Scotland’s public services. I submit that that, too, is a good thing.

Any such arrangements must be clear, codified and subject to safeguards around individual privacy. In any such data-sharing proposals, ministers will need to state clearly who would be able to share data and for what purposes. To summarise the point: in debt, in fraud and in public service delivery matters—those points have been quite fairly raised by Mike Rumbles—ministers must bring to Parliament a statutory instrument that will require to be considered under affirmative procedure. This Parliament must, should and will be consulted and shall decide on any proposed usage of the powers on said matters.

I am not sure whether being accused of being benign as a minister is a compliment or an insult, but I accept it in the spirit in which it was intended. Having undergone an extensive process, we are satisfied that the provisions of the bill, as amended, as they relate to devolved matters, are appropriate.

On a point of order, Presiding Officer.

I ask the Presiding Officer to confirm something, please. From what the minister has just said, it seems that, although the minister has requested that the UK Government pay attention to what is being said, if Parliament passes the legislative consent motion tonight, that would give Westminster carte blanche. Is that correct?

That is not a point of order—the member is asking for clarification. He is well able to put that question to the minister; it is not for me to adjudicate on such matters.

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