Exclusive:Police Scotland could be cut off from 'essential' databases under biometrics shake up
Warning that controversial technologies could be ‘governed to different standards’
Police Scotland may be unable to access “essential” information on UK national databases due to proposed legislative changes around biometric data such as facial recognition scans, with citizens facing the prospect of “different protections and rights,” according to a senior watchdog.
Professor William Webster, the UK Biometrics and Surveillance Camera Commissioner, said that while plans to overhaul the way biometrics are regulated in England and Wales would provide “legal certainty” in those nations, it would complicate matters in Scotland, meaning that the use of “contentious” technologies could be “governed to different standards.”
He warned that the complex regulatory landscape would have a direct impact on criminal justice organisations who routinely share biometric records like DNA and fingerprints at a UK level, with Scotland’s national police force potentially facing the scenario where it cannot integrate existing data.
But Dr Brian Plastow, the Scottish Biometrics Commissioner, told The Scotsman the “subtle nuances” in rules around biometric data as a result of devolution were not a “new phenomenon,” and stressed that UK policing bodies had dealt with differences for decades without any “substantive complications.”
The UK government has said the new Police Reform Bill will introduce a new legal framework underpinning the use of facial recognition and similar technologies by police and other law enforcement agencies.
The legislation, announced in the King’s Speech last month, is expected to create a new regulatory oversight body, combining Mr Webster’s office and that of the UK Forensic Science Regulator, granting it powers around audits, inspections, and compliance, and allowing it to make it clear when use of technologies like live facial recognition (LFR) can be justified.
However, Mr Webster pointed out that the introduction of such a framework would “further complicate” the regulatory landscape in Scotland, given the potential use of LFR and any other biometric surveillance tech by Police Scotland would not fall under the scope of the legislation.
The surveillance expert explained: “There is a scenario here where these sensitive, intrusive and often contentious technologies are governed to different standards in different parts of the UK, with citizens afforded different protections and rights.
“This situation would be further exacerbated if the legal framework for England and Wales extended to other public bodies, such as local authorities, and the commercial sector.”
Mr Webster, professor of public policy and management at the University of Stirling, said that the changes could also bring about different standards for custody images, records maintained on the Police National Database, and DNA retention periods for juveniles, stressing that the divergent retention in use requirements in different jurisdictions causing “complications” for the legality of cross-border information sharing.
In his response to a Scottish Government consultation on the functions of the Scottish Biometrics Commissioner, he explained: “Policing in Scotland does not exist in isolation and such information sharing is essential at both the UK level and internationally.
“The risk here is that Scottish policing bodies can’t interact with UK national databases, because standards and rules elsewhere are not complementary with those in Scotland, or where practices diverge to the point that biometric data can’t be integrated.”
Mr Webster is not the only senior figure to express misgivings over the unintended consequences of the different legal frameworks surrounding biometrics. This spring, Dr Plastow pointed to the Home Office’s rapid rollout of LFR in England and Wales, where it has committed to equipping every police force with the divisive technology.
Dr Plastow said that if Scotland did not have that capability, there could be “profound consequences,” such as the dispersion of activity by serious organised crime groups to Scotland.
No decision has been made around the potential use of LFR in Scotland, with civil liberties groups and human rights campaigners firm;y opposed to its introduction. Police Scotland insists its consideration of the technology is ongoing, but Dr Plastow has urged the new justice secretary, Neil Gray, to introduce primary legislation on the issue, arguing that it would provide “democratic safeguards” compared to existing codes of practice.
Dr Plastow has said he acknowledged and supported the “potential need for and value of “ LFR, stating that if it is used in a “limited, proportionate, and strictly necessary” way, he could see “real benefits” for policing operations targeting serious and organised crime, and “serious criminal threats” from known individuals.
But in his submission to the consultation, Mr Webster said that while his Scottish counterpart’s office should be expected to support the lawful, effective and ethical use of biometrics, it was “questionable” whether it should also be charged with promoting their use more generally.
He said the debate around LFR was a case in point, and indicated there was a risk that the independence of Dr Plastow’s office would be “compromised” if its primary function is perceived to be supporting initiatives led by Police Scotland.
Dr Plastow told The Scotsman that despite the distinct and devolved legal systems across the UK, there had been no impairment of the sharing of biometric data, pointing to the use of IDENT1, the single UK fingerprint system, as an example.
“The laws of the UK and the consequences of devolution rightly deliver subtle nuances in the rules applying to biometric data and none of this is a new phenomenon,” he said.
A Police Scotland spokesperson said: “Policing in Scotland does not exist in isolation, it operates on a national and global scale. We have long and well-established working partnerships and practices with national, and international, law enforcement agencies and jurisdictions, for sharing information and biometric data and will continue to work with our partners as we assess progressing facial matching capabilities.”
A Scottish government spokesperson said: “Scotland has a different legal and policing system and we do, of course, assess UK legislation for its implications.
“We will continue to work with the Scottish Biometrics Commissioner, the Scottish Police Authority and Police Scotland to ensure that the use of biometric data and technology remains lawful, proportionate and effective.”
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