Official Report 226KB pdf
To return to the Regulation of Investigatory Powers (Scotland) Bill, we have had the wind taken out of our sails but we should not complain about that. We can welcome the concessions—if that is the right word. There are areas of concern that remain. I am not happy with the description of seniority—I do not see that specifying the level is an insurmountable problem, particularly given the powers involved.
That is a very important point, convener. Drawing on previous experience, we know that one of the difficulties with the interception of communications legislation was that there was no definition of senior officer. That made it difficult for others to determine to whom that might apply. The public are not familiar with the ranking and seniority within public organisations and the civil service. It is important that that is defined to a reasonable extent.
The argument that has been put forward is perfectly reasonable and I support it. We might be straying beyond our direct remit. Perhaps we should draw the matter to the attention of the lead committee, rather than dealing with it ourselves. I recognise that we are dealing with subordinate legislation because the Scottish ministers can introduce restrictions. However, the base remit should be set by the lead committee and we should be considering whether it is reasonable to use subordinate legislation to amend the bill in future. There might be changes in organisational structures and the definition of ranks within those structures. That would not necessarily require us to introduce further primary legislation. There should be a baseline in relation to the schedule, but future amendments could be made through subordinate legislation.
We can, within a degree of specification, indicate that we are not satisfied. We can flag up the issue and suggest that something that would be amended by subordinate legislation should include some element of specification. We should be able to say "or such equivalent rank" so that if a post changes, the legislation will apply to the new equivalent rank.
Did the Executive indicate that the instruments would be changed?
It was an affirmative procedure. I was going off at a tangent there. The memorandum was clear.
I welcome the concession that public authorities under section 5(3) would be listed in the schedule. It would be reasonable to say that we welcome that commitment. However, that still leaves the general power to vary the schedule. Some public authorities may be listed, but not all of them. I am still rather concerned that this is something that should be on the face of the bill.
The schedule would be part of the bill.
I am talking about the possession of a residual power to add or subtract from the schedule by subordinate legislation.
That would have to be done under an affirmative procedure. Does that satisfy your concerns? Personally, I understand why the addition and removal of organisations might be necessary, perhaps because new organisations have sprung up. We do not necessarily need a super-affirmative procedure, because we would only be adding one or two bodies as they arise. The inclusion of the schedule has addressed many of my concerns.
I agree. There has been no objection to the need to add new bodies, perhaps because a body has been renamed. However, I am unsure whether there should be a residual power to add pre-existing bodies. Perhaps the power should be restricted to cases where there has been a change of name, a successor body or the creation of a new public authority.
Surely the Executive must be allowed to use a bit of common sense.
I do not want to push it. I am just thinking of the advice that we have been given.
I can understand why things are not specified, because circumstances may change, some matter may be criminalised and the relevant body may have a legitimate interest in dealing with it. One can look back to a time when environmental matters did not have such a high priority, yet nowadays, I could envisage circumstances in which SEPA might want to make use of surveillance to tackle dumping of hazardous waste and so on. The concessions can be welcomed.
I would go along with those comments, convener, particularly in the light of that clarification.
Yes. Before we move on, I should mention section 20(5). Perhaps it is a moot point whether the interim code of practice should have a time scale. I accept the logic of the Executive's comments and the fact that it is prepared to publish a draft code. However, the interim code should have a time limit.
On a slightly different matter, there is a concession that all the subordinate legislation would be brought in at the same time as the commencement of the act. That met several of our objections.
I think that the Executive said that the interim code would be introduced with the act, but the question is whether the interim code might become a permanent code de facto, because a permanent code is never created. Although there is some discussion about the interim code, it does not have the same level of consultation as we would expect for a permanent code. Perhaps we should ask for a reasonable time limit for the introduction of a permanent code. In terms of section 20, there are more powers for a judicial review of a fixed permanent code than an interim code. I am open-minded about what a reasonable time scale might be—six months or a year.
That is a fair point.
Should we indicate that we would like a code of guidance? It may be for a lead committee such as the Justice and Home Affairs Committee to decide on what is a reasonable time scale. Should we suggest a set period or leave it unspecified?
Six months seems reasonable. It might be helpful to give the Justice and Home Affairs Committee a steer on what we think would be appropriate.
We could suggest that there should be a time limit and that six months might be reasonable, but that we would be happy with a different time scale, provided that it is fixed. That would create something for the Executive to work towards. It would allow the Executive to co-ordinate its consultation plan and introduce a timetable. If there is no set final date for the consultation, it might just stagger on before grinding to a halt.
The officials said that they would look into that.
Should we welcome that and indicate that we think that it is important?
It is absolutely absurd and indefensible that this bill should set out two distinct procedures to be followed, one in respect of the most intrusive surveillance and another in respect of less intrusive surveillance, and then introduce an opaque provision that would allow the Executive to disregard completely the classification on which the bill is based. The Executive must drop this provision, as it seemed to hint it would.
Should we say that we find the section unacceptable in its current form?
That concludes our discussion of the Regulation of Investigatory Powers (Scotland) Bill.