Subordinate Legislation Committee, 05 Sep 2000

Meeting date: Tuesday, September 5, 2000

Official Report 123KB pdf

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Regulation of Investigatory Powers (Scotland) Bill

The first item on the agenda is the delegated powers scrutiny of the Regulation of Investigatory Powers (Scotland) Bill. We have made various points on this previously. Does anyone want to comment on the response that we have had from the Executive? We are up against a deadline as the bill is going through Parliament shortly.

I am prepared to welcome the fact that many of the points that were made have been accepted by the Executive. However, perhaps the most important point has not been accepted and it is one that must be raised. Under section 5(4), there are delegated powers by which the Scottish ministers may effectively add public authorities to those listed in section 5(3). The ministers also have powers to remove a public authority from the list and make any change consequent on a change in the name of a public authority.

What does that mean and why is it important? It means that the Executive has powers to add public bodies, which would presumably include non-departmental organisations—perhaps better known as quangos. Senior people in such quangos would, by virtue of section 5(1), be able to grant authority for directed surveillance of people and the covert use of human intelligence sources—I gather that the latter term means a type of surveillance that is done without anyone being aware of it, which might seem to be self-evident. To clarify with an example, that means that if a water authority—such as North of Scotland Water Authority in my area—were given those powers, it could put a surveillance order on people who are not paying their bills, perhaps people who cannot pay because they do not have the money and are not entitled to any rebate or relief.

Powers exist by which powers of surveillance can be passed over to unelected quangos for reasons that have not been specified. And it gets worse: under section 3(3)(d) and section 4(3)(d), there are provisions for the Executive to state that the two types of surveillance order—directed surveillance and covert use of human intelligence sources—can be used for purposes that have not yet been specified.

To a greater or lesser extent, we would all recognise the principle that surveillance can legitimately be used to protect the public against crime and disorder and to ensure public safety. However, is it acceptable for the Executive to be able to say that other purposes that have not been set out in the bill can simply be added on and for such powers to be handed to unelected bodies such as quangos, which might use them in relation to debt collection, for example?

If the Executive thinks that it is acceptable for quangos to be given those powers, why has it not given a list of those authorities? The Executive has had a long time in which to do so during the two stages of debate that we have had. The bodies in question are self-evident. The question is, will a water authority be given powers under this bill or not? If it is, for what purposes will it be given the powers? In an open democracy, the public are entitled to know what sort of surveillance powers will be available to such bodies.

It is not common for a member of the Scottish National Party to praise the House of Lords for any reason, but the 21st report of the Select Committee on Delegated Powers and Deregulation reaches a conclusion similar to mine. It states:

"The Committee cannot see why it is not possible to produce exhaustive lists now of existing authorities which are to have these investigatory powers."

There is a television programme called "Big Brother" and sometimes we feel that Big Brother is watching us. This bill, however, says that Big Brother will give powers to quangos to watch us in future for purposes that the Government is not prepared to specify. That is outrageous and I am astonished that the Executive has not shown the good grace that it has shown in other respects. I hope that other members will realise that the arguments for redrafting the provisions before the bill becomes law are strong. The situation is serious because, unless the Executive is prepared to act, the bill will become law after the stage 3 debate on Thursday.

Fergus Ewing is making rather more out of this than actually exists. The authorities that are being given the powers to start with are defined in section 5(3). Additional bodies can be added only after an affirmative resolution of the Scottish Parliament. If members of the Scottish Parliament thought that inappropriate bodies were being given the powers, the move could be blocked. I would point out that the bill proposes that certain quangos, such as health boards, be given the powers.

It is absolutely correct that there should be scrutiny of which organisations are being given the powers but the bill allows that scrutiny to take place through the need for an affirmative resolution of the Scottish Parliament.

I would accept some of the logic behind what Fergus Ewing is saying if he did not express it in such a paranoid way. He has overstated the case.

Like Fergus Ewing, I welcome the Executive's position as laid out in sections 9(2)(c) and 23(1). I also welcome the fact that there has been some give on the question of moving from a negative procedure. The powers are doubtless necessary in the modern society in which we live. Following my discussions with the chief constable of Lothian and Borders police, I accept that they are used sparingly. However, I think that democratic scrutiny of the number of organisations that have those powers should be possible. To some extent, this is a matter of checks and balances between the power of the Executive and the right to limit and restrict that power.

Like Fergus Ewing, I support the conclusions of the House of Lords Select Committee on Delegated Powers and Deregulation. I do not understand why an exhaustive list cannot be provided. If there are to be amendments, it is debatable whether subordinate legislation is applicable. In view of the restriction on debate, I worry that an affirmative resolution procedure might not be adequate.

Bristow, how do you feel about making the committee's position that, although the committee welcomes some changes, some members also welcomed the position of the House of Lords select committee on the matter while others took the view that the Executive's concession was sufficient? We could then leave the matter to Parliament and the lead committee.

That is an accurate summary.

I do not think that we will reach a consensus. However, we can flag up that Fergus Ewing, Ian Jenkins and I share concerns that others have raised elsewhere, and that other members accept the Executive's position, and leave it to others to take their view on the matter.

It would be more effective if we could express a view as a committee. In an attempt to reach some consensus, I ask the rest of the committee whether the logic of the House of Lords report is clear: that there is no real reason why it is not possible to produce a list of existing authorities now. Obviously, as the bill is part of the Executive's business programme, it has given great thought to the legislation and must have a fair idea about which bodies should or should not have these powers, especially as we are going through the principal stage 1 and stage 3 debates in Parliament. I raised one example, which I should point out was not meant to be particularly paranoid—I do not believe that the whole world is against me. However, there are other public bodies such as the Inland Revenue, various enterprise companies and health boards. Is it not possible for the Executive to make a fairly good stab now at saying which bodies should be given these very serious powers of surveillance? Could we not reach that view as a committee without making the other criticisms to which I adverted in my opening remarks?

The trouble is that a fairly good stab is not good enough. Will Fergus suggest a definitive list during the debate on Thursday?

I am not the Executive.

I know that, but I am suggesting that to make such a list is not as easy as you would think.

The Executive should be able to produce this information now, and I have not really heard any logical response from the rest of the committee about why it should not do so. In fact, the contrary is the case. Because the Executive has done so much work on the bill, it must know which bodies should be invested with these powers and should be able not just to make a good stab, but supply us with an exhaustive, definitive list now. Convener, I am sorry to labour the point, because I know that we have a long agenda ahead of us; however, I am interested in the Executive's logical response to that argument. What is its reason for saying that it cannot or will not provide such a list now?

It seems to me that section 5(3) of the bill defines the bodies that the Executive feels should have these powers here and now. I think that Fergus Ewing is asking the Executive to rule out any other bodies that, for whatever just reason, might be added to the list in future. We cannot rule out what we do not yet know.

The logical response to that argument is to invite the Executive to confirm that, under section 5(3), the Executive has made a list of all the bodies that it currently envisages should be invested with these powers. The Executive's response would deal directly with Bristow's point.

It would be entirely appropriate for members to put that question to ministers during Thursday's debate. However, that is the way that I interpret section 5(3).

It is essential to raise this issue during Thursday's debate on the bill. It is serious and should not be passed over. I have great sympathy with Fergus Ewing's comments, even though I share Ian Jenkins's view about how they were expressed. I hope that the committee can reach a view that highlights the issues to allow Parliament to reach a decision on them, so that the matter does not just go through without a full discussion of the pros and cons.

I am sure that the Executive must have something in mind. Part of this committee's remit is to ensure that powers are not so wide that the Executive can implement legislation without having a clear view of what that legislation will achieve. We should attempt to ensure that Fergus's question is asked during the debate and that ministers respond to it. Parliament might then judge that provision is adequate.

We could tell the Executive today that the committee believes that a serious question has to be considered, so that ministers can make their position clear by Thursday. We would have liked longer to discuss the issue, so that the Executive could have had longer to consider it.

I can see why an Executive would not want a definitive list. However, it is the duty of those in the legislature to anticipate dealing with both good and bad Executives. Although I appreciate that no one wants a situation in which primary legislation is needed to give these particular powers to any new authority that might be created, these powers are fairly draconian and I would welcome some balance. There might be an Executive that was not so judicious, fair-minded and impartial. An affirmative instrument should not go through simply on a whim or a fancy.

Bristow, I do not know whether you have been persuaded by any of our arguments, or whether you would prefer us simply to make the points that have been raised round the table: that we welcome what the Executive has conceded; flag up the fact that several members are deeply cognisant of the concerns of the House of Lords Select Committee on Delegated Powers and Deregulation; and leave the matter for others to decide on.

I have not been particularly persuaded by any arguments. Your initial summary about recognising different strands of opinion within the committee would be more appropriate.

To be honest, after reading the legal advice, I was a little unsure about the situation at the start of the meeting. However, I have listened to the arguments and must agree with Bristow. We should flag up committee members' concerns and be aware of the matter when it is debated on Thursday. I have horrible memories of the Local Government Committee being hit with 100-odd devolved public bodies that had to be added to a list; it became a total nightmare. That said, I accept that this situation is quite different.

Section 5(3) contains a reasonably good list. I am sure that the Executive considered it and decided, at least initially, that it needed to give these powers to the organisations mentioned. Furthermore, the bill also contains provision for changing the list. Although I take the point about anticipating good and bad Executives, we would need to put that into every piece of legislation. We should flag up our initial comments to the Executive, ensure that the matter is discussed clearly and openly in the Parliament and speak to other members of our parties about whatever reservations we might have.

Fergus, I do not think that we will reach consensus on the matter.

Trish Godman says that we should flag up issues of concern. Perhaps we could specifically invite the Executive to clarify, before the stage 3 debate on Thursday, whether it has other bodies currently in mind for the list and to specify them. That would go a long way towards dealing with my points.

I understand that the Executive might do that in the course of the debate; however, we could certainly flag up the issue before then. Are Bristow Muldoon and Trish Godman happy with that?

Members indicated agreement.