Scottish Biometrics Commissioner - review of functions: consultation

Ministerial Foreword

The value of biometric data in policing is widely recognised. Fingerprints and DNA often carry significant evidential value, and these techniques are increasingly being supplemented by new and emerging technologies such as facial recognition software. Independent oversight of how policing bodies acquire, use and destroy biometric data is therefore vital to securing public trust.

In 2020 the Scottish Parliament passed the Scottish Biometrics Commissioner Act 2020 (the 2020 Act) to create an independent Scottish Biometrics Commissioner (SBC) within the context of policing and criminal justice, and to establish a code of practice. In 2021, Dr Brian Plastow was appointed as the SBC by her late Majesty Queen Elizabeth, on the nomination of the Scottish Parliament.

The key aim of the 2020 Act was to establish an independent Commissioner to encourage an effective, proportionate and ethical approach to the use of biometric data by specified policing bodies, that balanced the benefits against wider ethical and human rights considerations. This approach would promote transparency and enhance public confidence in police use of such data. To ensure that the remit of the SBC remained relevant in a rapidly evolving biometric landscape, the 2020 Act required that a review take place periodically of whether the SBC’s functions remained appropriate and whether the list of bodies subject to the SBC’s oversight should be amended. Therefore, five years after the appointment of the SBC, the Scottish Government is now fulfilling its legal obligation to undertake such a review.

In the last five years, the SBC has delivered many outputs, including a statutory code of practice; five thematic reviews; a review of retention periods in collaboration with the Scottish Government – as well as giving evidence to parliamentary committees and raising the profile of police use of biometric data in Scotland. There is abundant evidence of the work taken forward by the SBC and his staff which is publicly available on the SBC’s website. However, the purpose of this review is not to assess the quality of the SBC’s performance – as an independent commissioner, he is accountable to the Scottish Parliament for that. Rather, the purpose of this review is to determine the impact of this work; to assess the future landscape for police use of biometric data; and thereby to establish whether the SBC’s current functions and the list of oversight bodies remain appropriate to delivering the effective, lawful, proportionate and ethical use of biometric data which was envisaged in 2020.

The 2020 Act created a SBC whose functions were to be focussed on rights, standards and accountability within policing and criminal justice. I look forward to hearing your views on whether the SBC’s functions and associated list of bodies which are subject to the SBC’s oversight as expressed in the 2020 Act, have been sufficient to achieve this aim to date, and can continue to deliver effective oversight for the next five years.

Angela Constance, MSP

Cabinet Secretary for Justice & Home Affairs