Scotland could become one of a few countries in Europe without primary legislation governing police use of live facial recognition (LFR) technology, the Biometrics and Surveillance Camera Commissioner has warned.

Professor William Webster, who oversees biometrics and surveillance camera use in England and Wales, told Futurescot that the current direction of travel leaves Scotland in a “perilous position” as governments elsewhere move to put intrusive biometric surveillance on a statutory footing.

His intervention comes days after the Home Office confirmed that police use of facial recognition in England and Wales will be placed on a specific legal footing, overseen by a new independent regulator, through the forthcoming Police Reform Bill.

Speaking after addressing Futurescot’s Digital Justice & Policing conference in Glasgow last month, Professor Webster said: “The new legislative framework being brought forward as part of the Police Reform Bill, when laid before Parliament, will apply to England and Wales. It will set out rules around necessity and proportionality in primary legislation, and these will apply to LFR and other biometric surveillance technologies and practices.”

He added that in the EU the technology will be governed by the EU AI Act, and pointed to a recent report by the EU Agency for Fundamental Rights (FRA) which found that member states wanting to use LFR would also need to introduce primary legislation.

“So, the current direction of travel is that Scotland could potentially be one of a few countries in Europe without primary legislation covering the police use of intimate, intrusive biometric surveillance technologies like LFR,” he said.

“The other aspect of this trajectory is that Police Scotland are indicating a desire to use LFR, and without any primary legislation it will be left to Police Scotland to determine what constitutes ‘necessity’ and ‘proportionality’.”

The Scottish Government has repeatedly said that the lawful, effective and proportionate use of any technology with live facial recognition capability is “an operational matter for Police Scotland”, which must abide by data protection law, the European Convention on Human Rights and the Scottish Biometrics Commissioner’s (SBC) statutory Code of Practice.

Professor Webster recognises that this position is accurate. “There is nothing to stop Police Scotland procuring the equipment and using it,” he said, though he noted the force would presumably have to navigate the Scottish Police Authority’s ‘Rights Respecting Pathway’ – a process through which a technology like LFR “would have to go through many hoops” for the pathway to be purposeful.

The commissioner also questioned whether the Scottish Biometrics Commissioner’s Code of Practice – which ministers and Police Scotland have pointed to as the governing framework – is the right vehicle for LFR.

“The idea that LFR would fall under the SBC’s Code is still to be determined and is really a fall-back measure, a poor substitute for primary legislation,” he said.

He said the picture in Scotland was further complicated by the absence of an up-to-date national strategy for overt public space surveillance cameras. While England and Wales have the Surveillance Camera Code of Practice – which also covers LFR and which he said had “proven to be a platform for LFR use” – Scotland’s last National Strategy for Public Space CCTV in Scotland dates from 2011 and is woefully out of date.

The technology on Scotland’s cameras is already moving on. Police Scotland is seeking to pilot BriefCam, an AI-powered CCTV search system, on cameras covering Marischal College in Aberdeen. The three-month proof of concept would use ‘object’ matching to speed up searches of recorded footage, rather than facial recognition. The software has facial recognition capabilities, but the proposal excludes their use by the force.

Professor Webster stressed that he is not opposed to police using the technology. “I have always argued that the police should make best use of emerging tech to do their work to the best of their ability,” he said. “But this has to be done lawfully, and in the case of LFR there is a direct conflict with fundamental rights, and this has to be recognised if it is to be mitigated against – and the best way to do this is through primary legislation.

“So, Police Scotland will at some point deploy LFR. The issue will be under what regulatory regime, and  with the UK Government and the EU legislating for this technology there is a risk that Scotland gets left behind,” he added.

Police Scotland signalled in September 2025 that it would press ahead with work on LFR following a ‘national conversation’ run with the Scottish Police Authority and the Scottish Biometrics Commissioner, focusing on three potential use cases: the night-time economy, locating vulnerable or missing people, and indoor events that could be terrorist targets.

Weeks later, delegates at the SNP’s annual conference in Aberdeen passed an unopposed motion calling on ministers to delay any use of LFR and introduce primary legislation governing it. The resolution is not binding on government policy.

Scottish Biometrics Commissioner Dr Brian Plastow has since repeatedly backed primary legislation, describing an Act of Parliament as the “best safeguard”. In May this year he wrote to new justice secretary Neil Gray urging Scotland to keep pace with the UK Government, which committed to a legal framework for facial recognition in the King’s Speech.

In his reply, Mr Gray said a commitment to consider primary legislation would be “premature“, adding that the Scottish Government would assess the UK framework for its relevance to Scotland. He noted that any LFR-specific changes to the Code of Practice would require affirmative secondary legislation and parliamentary scrutiny, and that a Police Scotland business case for LFR is not expected until 2027-28 at the earliest.

Pressure for the technology has grown since. In August, HM Chief Inspector of Constabulary in Scotland, Craig Naylor, called for facial recognition to be used to keep banned individuals out of football grounds following a series of match-day disorder incidents, and urged the authorities to “be ambitious” in adopting it. Chief Constable Jo Farrell told Mr Gray the same month that the technology was under ‘active consideration’, but that any proposal would need a clear business case and scrutiny through SPA governance.

Meanwhile, the Scottish Government is due to report to Holyrood by the end of November on its statutory review of the Scottish Biometrics Commissioner’s functions – including whether his remit should be extended to cover public space surveillance cameras. Professor Webster, a member of Dr Plastow’s advisory board, backed a broader remit and stronger powers in his response to that review.