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Scottish Biometrics Commissioner Act 2020

Type Act of the Scottish Parliament

Publication 2020-04-20

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

Reform history JSON API

Establishment

Scottish Biometrics Commissioner

1

(1) The office of Scottish Biometrics Commissioner is established.

(2) Schedule 1 makes further provision about the office.

Functions

2

(1) The Commissioner's general function is to support and promote the adoption of lawful, effective and ethical practices in relation to the acquisition, retention, use and destruction of biometric data for criminal justice and police purposes by—

(a) the Police Service of Scotland,

(b) the Scottish Police Authority,

(2) But the Commissioner's general function does not extend to biometric data in relation to which the Commissioner for the Retention and Use of Biometric Material has a function under section 20 of the Protection of Freedoms Act 2012.

(3) In exercising that general function, the Commissioner is to—

(a) keep under review the law, policy and practice relating to the acquisition, retention, use and destruction of biometric data by or on behalf of the persons referred to in subsection (1),

(b) promote public awareness and understanding of the powers and duties those persons have in relation to the acquisition, retention, use and destruction of biometric data, how those powers and duties are exercised, and how the exercise of those powers and duties can be monitored or challenged,

(4) In complying with subsections (3)(a) and (b), the Commissioner is to have regard to the technology used or capable of being used for the purpose of acquiring, retaining, using or destroying biometric data.

(5) The Commissioner may, in particular—

(a) carry out, commission or support any research the Commissioner considers appropriate,

(b) make recommendations in relation to any matter relevant to the Commissioner's general function.

(6) In exercising the Commissioner's general function, the Commissioner must have regard to the interests of—

(a) children and young persons, and

(b) vulnerable persons.

(7) The Scottish Ministers may by regulations amend subsection (1) so as to add a person or description of person, vary an entry listed in it, or remove an entry.

(8) For the purpose of this section—

“children and young persons” means individuals under the age of 18 years,

“vulnerable persons” means individuals who, by reason of their personal circumstances or characteristics, may have difficulty understanding matters relating to the acquisition, retention, use and destruction of their biometric data by or on behalf of the persons referred to in subsection (1).

Power to work with others

3

The Commissioner may, in the exercise of the Commissioner's functions, work jointly with, assist or consult—

(a) the Scottish Parliament,

(b) the Scottish Ministers,

(d) the chief constable of the Police Service of Scotland,

(e) Her Majesty's Inspectors of Constabulary in Scotland,

(f) the Scottish Police Authority,

(g) the Police Investigations and Review Commissioner,

(h) the Information Commissioner,

(i) the Commissioner for the Retention and Use of Biometric Material,

(j) the Scottish Human Rights Commission,

(k) such other persons as the Commissioner considers appropriate.

General powers

4

(1) The Commissioner may do anything which appears to the Commissioner—

(a) to be necessary or expedient for the purposes of, or in connection with, the performance of the Commissioner's functions, or

(b) to be otherwise conducive to the performance of those functions.

(2) Despite the generality of subsection (1), the Commissioner may pay fees and allowances to a person for advice, assistance or any other service only with the approval of the Parliamentary corporation.

Duty to comply with directions

5

(1) The Commissioner must comply with any direction given to the Commissioner by the Parliamentary corporation in relation to—

(a) the location of the Commissioner's office,

(b) the sharing of premises, staff, services or other resources with any other officeholder or any public body,

(d) the process to be followed in appointing members of the advisory group established under section 33.

(2) A direction under this section may vary or revoke a previous direction.

(3) The Parliamentary corporation is to make any direction under this section publicly available.

Report on the Commissioner’s functions

6

(1) The Scottish Ministers must, before the expiry of the period of 12 months beginning with the day after the last day of the period to which the Commissioner's first strategic plan relates—

(a) prepare and publish a report on the Commissioner's functions, and

(b) lay a copy of the report before the Scottish Parliament.

(2) In preparing the report, the Scottish Ministers must consult such persons as they consider appropriate.

(3) The report must include an assessment of whether—

(a) the functions of the Commissioner remain appropriate,

(b) the powers conferred by sections 2(7) and 9(4) should be exercised.

(4) The Scottish Ministers must, before the expiry of the period of 5 years beginning with the day after the day on which the most recent relevant document was laid before the Scottish Parliament—

(a) prepare and publish—

(i) a report on the Commissioner's functions, or

(ii) a statement setting out why they consider such a report to be unnecessary, and

(b) lay a copy of the report or statement before the Scottish Parliament.

(5) Subsections (2) and (3) apply to a report under subsection (4)(a)(i) as they apply to a report under subsection (1).

(6) In this section, “relevant document” means—

(a) a report under subsection (1) or (4)(a)(i), or

(b) a statement under subsection (4)(a)(ii).

Code of practice

7

(1) In furtherance of the Commissioner's general function, the Commissioner must prepare, and may from time to time revise, a code of practice on the acquisition, retention, use and destruction of biometric data for criminal justice and police purposes.

(2) The code of practice must include provision about when biometric data must be destroyed in cases where a relevant enactment does not make such provision.

(3) In making provision in accordance with subsection (2), the Commissioner must have regard to the provision made by relevant enactments.

(4) The code of practice may make different provision for different purposes.

(5) Sections 8, 10 and 12 apply to a revised draft code of practice as they apply to a draft code of practice.

(6) For the purpose of this section, the following are “relevant enactments”—

(a) Part 2 of the Criminal Procedure (Scotland) Act 1995,

(b) section 56 of the Criminal Justice (Scotland) Act 2003,

Key considerations in preparing the code

8

In preparing a draft code of practice, the Commissioner must have regard to the importance of—

(a) promoting and protecting human rights,

(b) promoting and protecting an individual's right to privacy,

(c) promoting and protecting public confidence in the acquisition, retention, use and destruction of biometric data for criminal justice and police purposes, and

(d) ensuring the safety of individuals and communities.

Effect of the code

9

(1) The following persons must comply with the code of practice when exercising functions to which the code relates—

(a) constables and police staff of the Police Service of Scotland,

(b) the Scottish Police Authority,

(2) A court or tribunal in civil or criminal proceedings must take the code of practice into account when determining any question to which the code is relevant.

(3) Failure to comply with the code of practice does not of itself give rise to grounds for any legal action.

(4) The Scottish Ministers may by regulations amend subsection (1) so as to add a person or description of person, vary an entry listed in it, or remove an entry.

(5) In this section, “constable” and “police staff” have the same meanings as in section 99(1) of the Police and Fire Reform (Scotland) Act 2012.

Consultation on the code

10

(1) In preparing a draft code of practice, the Commissioner must consult—

(a) the Scottish Ministers,

(b) the Lord Advocate,

(d) the Faculty of Advocates,

(e) the Law Society of Scotland,

(f) the chief constable of the Police Service of Scotland,

(g) Her Majesty's Inspectors of Constabulary in Scotland,

(h) the Scottish Police Authority,

(i) the Police Investigations and Review Commissioner,

(j) the Information Commissioner,

(k) the Scottish Human Rights Commission,

(l) the Commissioner for Children and Young People in Scotland, and

(m) such other persons as the Commissioner considers appropriate.

(2) For the purpose of subsection (1), it is immaterial that anything done by way of consultation was done before this section comes into force.

Further procedure in relation to the first code

11

(1) Having prepared a draft of the first code of practice with which the Commissioner, with the consent of the Scottish Ministers, wishes to proceed, the Commissioner must lay a copy of it before the Scottish Parliament.

(2) In finalising a draft of the first code of practice, the Commissioner must have regard to any representations about it that are made to the Commissioner within 60 days of the date on which the copy of it is laid under subsection (1).

(3) In calculating the period of 60 days for the purpose of subsection (2), no account is to be taken of any time during which the Parliament is dissolved or in recess for more than 4 days.

Approval of the code

12

(1) Once the Commissioner has finalised a draft code of practice, the Commissioner must submit it to the Scottish Ministers for approval.

(2) The Scottish Ministers may approve a draft code of practice—

(a) without modification, or

(b) with such modifications as they, with the consent of the Commissioner, consider appropriate.

(3) If the Scottish Ministers do not approve a draft code of practice, they must give the Commissioner a statement of their reasons for not approving it.

Bringing the code into effect

13

(1) A code of practice approved under section 12(2) has no effect until the day appointed for the code by regulations made by the Scottish Ministers.

(2) Ministers must, when laying before the Scottish Parliament a draft of an instrument containing such regulations, also lay a copy of the approved code of practice.

(3) The Commissioner must publish the approved code of practice as soon as reasonably practicable after the regulations are made.

Report on the code

14

(1) The Commissioner must—

(a) keep the code of practice under review,

(b) prepare and publish a report on the Commissioner's findings, and

(2) The first report prepared under subsection (1) must be laid before the Parliament no later than 3 years after the date on which the first code of practice comes into effect.

(3) Subsequent reports prepared under subsection (1) must be laid before the Parliament no later than 4 years after the date on which the last such report was laid.

Complaints about failures to comply with the code

15

(1) The Commissioner must provide for a procedure by which an individual, or someone acting on an individual's behalf, may make a complaint to the Commissioner that a person who is required by section 9(1) to comply with the code of practice has not done or is not doing so in relation to the individual's biometric data.

(2) The procedure must provide for it to be available whether or not procedures—

(a) established by the person about whom the complaint is made, and

(b) which allow for the making of a complaint (or other representation) about the acquisition, retention, use or destruction of the individual's biometric data,

have been or are being pursued.

(3) In determining the procedure, the Commissioner must consult—

(a) the Scottish Public Services Ombudsman,

(b) the Information Commissioner,

(d) such other persons as the Commissioner considers appropriate.

(4) The Commissioner must give such publicity to the procedure as the Commissioner considers appropriate and must give a copy of the procedure to any person who requests it.

(5) The Commissioner must keep the procedure under review and must vary it whenever, after consulting the persons mentioned in subsection (3), the Commissioner considers it appropriate to do so.

(6) In subsections (2), (4) and (5), “the procedure” means the procedure for the time being in effect.

Information-gathering

Power to gather information

16

(1) The Commissioner may require any person in relation to whom the Commissioner has functions under section 2(1) to supply information which the Commissioner reasonably requires for the purpose of—

(a) determining whether persons who are required by section 9(1) to comply with the code of practice have done or are doing so, or

(b) exercising any of the Commissioner's other functions.

(2) Where a requirement is imposed under subsection (1), the Commissioner must give the person a written notice specifying—

(a) the information, or the nature of the information, which is to be supplied,

(b) the form in which it is to be supplied,

(d) in the case of information which is to be supplied by means of a statement in person, the place at which it is to be supplied, and

(e) the particular matters in connection with which it is required.

(3) A person is not obliged under this section to provide information which that person would be entitled to refuse to provide in proceedings in a court in Scotland.

(4) The Commissioner may revoke any requirement imposed under subsection (1) by giving written notice to the person to whom notice of the requirement was given.

(5) In this section, “information” includes unrecorded information.

Failure to comply with an information notice

17

(1) Where a person who is obliged to provide information in accordance with a notice issued under section 16—

(a) refuses or fails, without reasonable excuse, to comply with any requirement specified in the notice,

(b) attends to make a statement in person but refuses or fails, without reasonable excuse, to answer any question concerning the matters specified in the notice, or

(c) alters, suppresses, conceals or destroys, without reasonable excuse, any information which the person is required to produce,

the Commissioner may report the matter to the Court of Session.

(2) The Commissioner may also report the matter to the Court of Session where the Commissioner considers that a person who is mentioned in subsection (1) is likely to do any of the things specified in paragraphs (a) to (c) of that subsection.

(3) After receiving a report under subsection (1) or (2) and hearing any evidence or representations on the matter, the Court may (either or both)—

(a) make such order for enforcement as it considers appropriate,

(b) deal with the matter as if it were a contempt of court.

Admissibility of statements in criminal proceedings

18

An oral or written statement made by a person which the person was required to give under section 16 is not admissible in any criminal proceedings against that person.

Offence of Commissioner’s office disclosing confidential information

19

(1) A person mentioned in subsection (2) commits an offence if—

(a) the person knowingly discloses any information which—

(i) has been obtained by or on behalf of the Commissioner for the purposes of exercising the Commissioner's functions, and

(ii) at the time of disclosure is not, and has not previously been, in the public domain, and

(b) the disclosure is not authorised by subsection (3).

(2) The persons referred to in subsection (1) are persons who are or have been—

(a) the Commissioner,

(b) a member of the Commissioner's staff,

(3) For the purposes of subsection (1)(b), disclosure is authorised only so far as—

(a) it is made with the consent of the person from whom the information was obtained,

(b) it is necessary for the purpose of enabling or assisting the exercise of the Commissioner's functions under this Act, or

(c) it is made for the purposes of legal proceedings, whether criminal or civil (including for the purposes of the investigation of any offence or suspected offence).

(4) A person who commits an offence under subsection (1) is liable—

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