24 February 2015

S4M-12381 Legal Writings (Counterparts and Delivery) (Scotland) Bill: Stage 3

The Presiding Officer (Tricia Marwick): The next item of business is a debate on motion S4M-12381, in the name of Fergus Ewing, on the Legal Writings (Counterparts and Delivery) (Scotland) Bill. ..

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Stewart Stevenson (Banffshire and Buchan Coast) (SNP):

My experience says that this is a real issue and it is not a particularly new issue. On one occasion, 25 years ago, I had to fly from Vienna to San Francisco so that a contract could be signed. I had a very nice dinner with a director at Bank of America, who was the other party to the contract, I had a good night’s sleep, and then I got a taxi back to the airport and flew to Glasgow. I spent a total of 14 hours in San Francisco and for most of that time I was sleeping. Anything that helps us to address such situations—which, frankly, are a waste of time and money—has to be good news.

Quite reasonably, Annabel Goldie raised the issue that, potentially, different versions of a document could be signed in the belief that they were the same version. One issue that I pursued in the committee at stage 1 of the bill—with the Faculty of Advocates and with others—is harnessing the power of mathematics and of electronics to inhibit that particular possibility. It is perfectly possible, with a public algorithm and a public key, to derive a hash that represents uniquely a particular document. A single dot, comma or letter being changed in the document would result in a different key, so even if there were multiple copies, it would be possible to know whether those multiple copies were identical by the application of appropriate technology.

The bill does not provide for that option but it formed part of the consideration of the bill and I hope that, at some future date, we will be able to return to that subject and enable and require that procedure to be used.

Mike MacKenzie (Highlands and Islands) (SNP): I seem to recollect that a similar mechanism was used by Mary Queen of Scots, yet some of her letters were intercepted, which ultimately led to her demise. Would the member care to comment on how effective that mechanism may be in reality?

The Presiding Officer: Mr Stevenson, can we keep to the topic of legal writings?

Stewart Stevenson: I was referring, of course, to some of the stage 1 discussions. I will simply say that of course we should consider the decryption work of George Scovell, who worked for Wellington and broke the codes of Napoleon. That is a much more significant thing. However, that is beyond the scope of the debate and perhaps cannot be fitted in, even in a generous six minutes.

The real point that came up and which we put to witnesses at stage 1 was whether we should create the electronic infrastructure in Scotland so that a single copy can be held in one place and signing can be done electronically from dispersed geographic positions. There was some acceptance by witnesses that that was a good idea, but it was an idea that they would like to be the second jurisdiction to implement rather than the first. However, there comes a time when we have to be bold and perhaps take up that option.

Sometimes we have to take such things for granted if we cannot understand some of the mathematics that make them possible; in mathematics, there are P problems and NP problems. In essence, the NP problems are the ones that cannot be solved and the encryptions that we use these days are of that character.

The Faculty of Advocates and others in the legal profession are, not unreasonably, intensely conservative in their approach. They want to move in small steps, test, confirm that things work and provide the necessary security. However, the danger with the process that the Law Commission undertakes—it involves a rigorous examination before fully developed proposals are brought to Parliament, which is extremely helpful—is that all the contentious and difficult bits have been removed from the proposals, so we end up with something that is the lowest common denominator, to some extent.

Although the bill levels the playing field for Scotland and enables us to stand shoulder to shoulder with jurisdictions that allow counterpart operations, it does not take us ahead of the pack. The witnesses agreed that there was scope for returning to the issue in the future.

We must be confident, if we decide to hold contracts in a central database, that a document’s confidentiality will be protected. That raises a difficult issue for Governments of whatever complexion, and wherever they may be based. Governments naturally have a difficulty with absolutely secure secrecy of information, conversations and communication, but in this case we will not get commercial adoption unless that assurance is present.

We will need to return to looking at how—as the committee heard in evidence sessions—we can provide absolute security in a legal framework that places such onerous responsibilities on those who use that kind of unbreakable encryption and security to respond to legal requests for access. That has been done before—it is not particularly new—and we need to return to the subject.

In appearing before the committee, lawyers showed that they were willing to listen to the arguments but would proceed slowly. Indeed, it was 25 years ago that I was invited by the Faculty of Advocates to talk to its members about whether it could introduce a secure email system. They listened politely, but decided that they would not do so.

Lewis Macdonald spoke about the new generation, and how people under 30 view the electronic world. It is 35 years since I sent my first email, so some things have been around for an awful long time. We need to think about how rapidly things move on.

My grandfather was born when Abraham Lincoln was President; my father was conceived before the Wright brothers flew; and I was 11 years old when the first transatlantic telephone cable came into operation. Every life takes us forward, and we may have to speed things up a wee bit in the legal world to ensure that we keep up with the pack and that we can draw new business to Scotland rather than simply protect the business that we have.

The bill is an excellent piece of legislation, and I am sure that all members of the committee very much welcome the gracious comments with which the Presiding Officer opened the debate. I look forward to hearing what our committee convener has to say if he is called to speak; I see that his button is pressed. I am happy to support the bill, and I hope that the Delegated Powers and Law Reform Committee gets many more opportunities to engage in the overwhelming excitement that is legislation in the Scottish Parliament.


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