Draft Regulation of Investigatory Powers (Scotland) Bill
The minister is here, with his Executive team. I invite him to make a brief opening statement to explain the overall thrust of this bill, how it fits with the Westminster Regulation of Investigatory Powers Bill and why it needs to be passed quickly, given the controversy it is beginning to generate.
Good morning. I apologise on behalf of Jim Wallace, the Deputy First Minister, who was due to attend today's meeting. As committee members are aware, he is performing duties on behalf of the First Minister during his period of convalescence. The Deputy First Minister is therefore unable to be present.
In consequence, I am performing the duties of the Minister for Justice and have, at very short notice, agreed to step in. I apologise to members of the committee if the contribution that I am able to make is somewhat limited. As you mentioned, convener, I have with me a number of officials who will support me in discussing oday's items. I intend to help the committee as much as possible. If there are any issues that we are unable to address directly, I shall deal with them in writing immediately after the meeting has finished. I shall begin with a short statement on the draft regulation of investigatory powers (Scotland) bill.
The bill is part of a 20-year programme of reform to put police intelligence, security services and law enforcement on a properly regulated statutory basis. Other acts in the programme of reform include the Police and Criminal Evidence Act 1984, the Security Service Act 1989, the Intelligence Services Act 1994, the Criminal Investigations and Procedure Act 1996, the Police Act 1997 and, now, the Regulation of Investigatory Powers Bill at the Westminster Parliament and this draft bill going through the Scottish Parliament, on the regulation of covert investigative techniques involving surveillance or the use of covert human intelligence sources.
The underlying aim of the programme of reform is to secure a better balance between law enforcement and individual rights and to try to ensure proper compliance with the European convention on human rights.
The draft regulation of investigatory powers (Scotland) bill will provide a statutory system of controls for the use of surveillance and related techniques by Scottish police forces and National Criminal Intelligence Service operations in Scotland. It will also cover any other public authority, as specified by Scottish ministers, that may require to use directed surveillance or covert human intelligence sources, but not intrusive surveillance.
The draft bill does not introduce new police powers. The use of surveillance and human sources is long established as an effective method of tackling crime and it is important that those methods can continue as valuable weapons. The draft bill aims to strike a balance: to safeguard the rights of individuals to their privacy without hindering the effective use of the methods employed by law enforcement agencies.
The draft bill defines the categories of covert investigation techniques it seeks to regulate as follows. "Intrusive surveillance" involves a high expectation of privacy, or surveillance on residential premises or in any private vehicle. "Directed surveillance" relates to a specific investigation to obtain information about, or to identify, a particular person, or to determine who is involved in a matter under investigation. "Covert human intelligence sources" involves the use of informants and undercover officers.
Less intrusive, overt, forms of surveillance, such as closed-circuit television for crime prevention, public order or traffic management, are excluded on the basis that the members of the public who are monitored are aware of the monitoring in circumstances in which there is a low expectation of privacy.
To ensure that all covert investigation techniques are compliant with the ECHR, the draft bill will ensure that the law clearly covers the purposes for which the techniques may be used, which authorities may use the powers, who can authorise each use of the power, independent oversight and a means of dealing with complaints and redress for the individual. That is in keeping with the approach established in preceding legislation regulating the use of investigative techniques.
That will mean that all types of intrusive surveillance will need to be authorised either by the chief constable of a police force or by the director general of NCIS. Before the authorisation can take effect, it will need—except in particular cases of urgency, which are qualified—to be approved by a surveillance commissioner, who is an independent senior member of the judiciary. The surveillance will be allowed only to deal with serious crime, where it is proportionate to what is sought to be achieved and where there is no alternative means of achieving the objective.
Directed surveillance and the use of covert human intelligence sources will be authorised at a lower level, but the use of the powers to authorise the methods will be reviewed by the chief surveillance commissioner.
We do not foresee any need for Scottish ministers to be involved in the process of authorisation, and the draft bill will make no provision for them to have that role. For people who believe that they have been wrongly treated, the draft bill will also establish a right of complaint to a tribunal.
On urgency, under article 8 of the ECHR, everyone has the right to respect for their private and family life, their home and their correspondence, but it is explicitly recognised that there may, in a democratic society, be circumstances in which it may be necessary for the state to interfere with that right.
The use of surveillance to which the draft bill applies may be open to challenge under the ECHR because it involves interference by public authorities with private and family life in a way that is not regulated by law. From 2 October this year, those public authorities would be acting unlawfully if their activities were incompatible with article 8 of the ECHR. The draft bill aims to remove that risk.
Assuming that the Parliament passes the draft bill and that it obtains royal assent, the Executive aims to bring the act into effect by 2 October, which is the date when the Human Rights Act 1998 commences.
In relation to the police and NCIS for the purposes of preventing crime, protecting health and protecting public safety, the draft bill mirrors part II of the Regulation of Investigatory Powers Bill that is currently concluding its House of Commons stages at the Westminster Parliament.
Following the Sewel motion agreed to by the Scottish Parliament on 6 April, the areas covered in parts I and III of the bill are to be dealt with at Westminster. Those areas are either clearly reserved under the Scotland Act 1998 or were open to interpretation with regard to their devolved or reserved status, so there would have been a risk of challenge in the courts to the Scottish Parliament's competence to legislate for the activities in question. Other areas were clearly within Scottish legislative competence, but we believed a UK-wide arrangement would be more effective.
Part I of the Regulation of Investigatory Powers Bill updates the Interception of Communications Act 1985 to take account of developments in the telecommunications industry. It introduces statutory controls on law enforcement access to communications data including billing information and the destination, frequency and duration of calls—in addition to the controls on powers to intercept actual communications.
Part III provides powers to allow public authorities to demand the decryption of encrypted material for specified purposes. Part IV contains provisions establishing the roles of the surveillance commissioners, the tribunal and the code of practice. Part V contains miscellaneous and supplemental provisions.
The most important direct link between the draft Scottish bill and the Westminster bill is the tribunal. During the Sewel debate, we proposed that the tribunal established under the Regulation of Investigatory Powers Bill would be the forum for complaints about activities that were, or could have been, authorised under the Scottish legislation. The rationale for that was that it was important for the tribunal to be able to develop clear expertise in this specialised, sensitive area. That would have been very difficult to achieve on the narrow base of cases likely to be generated in Scotland alone.
Clause 60 of the Westminster bill contains enabling powers to allow the Home Secretary to make rules for the tribunal's procedure, which must be approved by the Westminster Parliament. Officials are discussing how consultation will take place with Scottish ministers on the rules to take account of Scottish requirements.
The bill will not introduce new powers; it will regulate and control methods that are already in use. It will have a positive impact on civil liberties in making the use of covert investigation techniques compatible with the ECHR. It will specify the purposes for, and circumstances in which, surveillance and covert human sources can be used. It will specify who can authorise the use of the techniques; it will provide independent oversight, including the power to quash authorisations; and it will provide procedures for complaints and redress.
That concludes my opening comments, convener. I am of course happy to take questions. I will invite some of the officials who are with me to deal with some of your more detailed inquiries.
Thank you, minister. I would like to ask one or two questions about timetabling and so on. You have clearly explained why the draft bill needs to become law by 2 October. I do not think that you have explained adequately why we are getting the bill only in May, given that the bill it mirrors was introduced in the House of Commons on 9 February. I was down in Westminster on Monday night, voting at the report stage of the UK bill. I am quickly going through a comparison between part II of the Westminster bill and the Scottish bill. I can see one or two small differences, but it is essentially the same.
Why was the Scottish bill not introduced long before May this year? The result of the delay is that a timetable has been forced on this committee for no apparently good reason, causing us great difficulty with our work load.
I acknowledge the strain that the committee is under with the broad legislative work load that the Executive has placed on it and its wish to deal with its own business. The Executive has been aware for some time of the need to legislate on this area and has been actively considering how best to strike the right balance between effective law enforcement and the protection of human rights.
Obviously, as the Scottish Parliament has existed only for a year, the concept of parallel legislation being considered contemporaneously by both Parliaments is new. It is vital for effective law enforcement that the Scottish and Westminster bills should fit seamlessly together to ensure that criminals do not escape through legal loopholes. As a result, the process has been very complex and the Scottish Executive and Home Office officials have had to co-ordinate their activities closely over a period of months.
As well as trying to ensure compatibility between the UK and Scottish bills, we have tried to resolve certain complex legal issues of legislative competence to avoid the possibility of implementing a regime that was susceptible to challenges in the courts on the grounds that the Scottish legislation was not competent to regulate the activity or body in question. At all times, we have been keen to secure a level playing field for the legislation which is being developed and passed in England and Wales and in Scotland.
I am not sure that that answer is satisfactory. People knew about the House of Commons bill before it was introduced, which was three months ago. In contrast, we are only getting the draft Scottish bill now with an imposed end point, which causes us serious difficulty as we have to deal with another piece of legislation at the same time. If this is going to happen with other pieces of legislation, the Executive should attempt to get on the case considerably earlier. As a consultation process was undertaken at Westminster prior to the bill's introduction there, I wonder why this Parliament was not involved much earlier on.
Convener, you make a fair point about the length of time between the introduction of legislation at Westminster and its introduction here. All I can do is reiterate the complex issues at stake and the fact that we are at a relatively early stage on a learning curve as far as contemporaneous legislation is concerned. I am certainly happy to take on board your point that where similar circumstances occur in future, we will try to get the issues before the committee far earlier.
You have been careful to say that this bill raises very complex issues. It has been three months from the bill's introduction in Westminster until today, when we have received the draft Scottish bill, which is not being formally introduced today. We must assume that those three months have been necessary to deal with the complex issues that you mentioned. Nevertheless, you expect the committee to do the same in two months. Frankly, that is not reasonable.
If the issue is that complex and that potentially controversial, should the committee not have the maximum possible amount of time to allow us to deal with those complexities? Although I do not expect you to answer that question, I want to make that point strongly. If this legislation is so complex that the Executive required that amount of time to get it to the committee, it is complex enough for this committee to be allowed the maximum amount of time to deal with it. We are not getting that time.
We want to ensure that the committee has sufficient time to consider appropriately any and all legislation, and that applies to consideration of this draft bill. However, in this case, the difficulty lies with the requirement to ensure that, in respect of part II of the bill, the proper competences for the Parliament vis-à-vis the reserve powers of Westminster in relation to some specific UK agencies such as HM Customs and Excise be taken into account in great detail.
Now that the question of where the competence for those issues or agencies lies has been resolved, that is less of an issue for the committee than substantive issues such as how the legislation should be implemented, the circumstances in which activities should be authorised, the operation of the tribunal and the lines of accountability. Although the process has taken quite some time—and I hope that in future it will not take the same length of time, as we have already been through the learning curve—many of the issues that it took us some time to resolve should not necessarily detain the committee, as they involved resolving how specific competences would be dealt with in relation to reserved and devolved powers.
It is for this committee to decide what should be examined, and there will be some difficulty with our time scale should we decide to range reasonably widely in our considerations.
The convener mentioned a consultation session that was undertaken at Westminster before the UK bill was introduced. However, in the documents that surround the bill's publication, ministers said that the legislation was far too complicated to go out to consultation in Scotland. Will the minister explain why there was a consultation period in England, but not in Scotland?
The consultation period in England applied to parts I and III of the Westminster bill, not to part II, which the draft legislation under consideration today mirrors. That means that there was no pre-legislative consultation period for that part of the Westminster bill.
The minister has outlined some of the principal changes to the bill and has emphasised the fact that 2 October is a critical date because of the incorporation of the ECHR. However, because of the Scotland Act 1998, the ECHR has already been incorporated into Scottish legislation. What surveillance techniques have been used by police in Scotland since the implementation of the Scotland Act 1998 and the incorporation of the ECHR? Have the police been unacceptably restrained recently because of conditions surrounding surveillance, or have they been acting outwith the ECHR since implementation of the Scotland Act 1998?
When did you stop beating your wife, minister? [Laughter.]
I think that I will move on to the substance of my answer without giving Mr Gallie the customary thanks for his question.
It might be helpful if I make a few comments on the position prior to 2 October 2000. The Lord Advocate must act compatibly with convention rights and prosecute accused persons only when the act of prosecution is compatible with those rights, including the right in article 8 to respect for private and family life. That obligation has applied to the Lord Advocate since 20 May 1999. The Lord Advocate's duties to act compatibly with convention rights include the duty to seek convictions only on the basis of evidence that has been obtained and led in a manner compatible with the accused's rights under article 8 of the ECHR.
The use of intrusive surveillance techniques by the police and other agencies interferes with the right of the individual affected under article 8. Such techniques will be compatible with article 8 if they are utilised in a manner that is compatible with article 8.2, and, in particular, there must be a legal framework that regulates such techniques, given the article 8.2 requirement that a legitimate interference with private and family life must be
"in accordance with the law".
If intrusive surveillance techniques are applied to an individual when he or she might be said to a have a reasonable expectation of privacy in the absence of a basis in law, any evidence obtained might be said to be irregularly obtained.
Although it does not follow, either in Scots law or under the ECHR, that irregularly obtained evidence will inevitably be inadmissible, there is a risk that any evidence obtained as a result of obtrusive techniques that do not have a legal basis will be held to be inadmissible, and that convictions may be successfully appealed against on that basis. That is the position in relation both to cases commencing before 2 October 2000 and to cases commencing after that date, given the obligations on the Lord Advocate under the Scottish Act 1998. This point has yet to come before the appeal courts.
Given that statement and the responsibilities of the Lord Advocate, were specific guidelines issued or were the police advised by the Lord Advocate as to the situation? Were they told that they should re-examine their techniques in the interim?
The various enforcement agencies operate under an existing code of practice that was developed by the Association of Chief Police Officers in Scotland and other enforcement agencies. At present it is a voluntary code of practice, but this legislation, if passed, would require a code of practice that would have the force of law. Further guidelines will need to be developed, but they may be similar to the existing voluntary guidelines.
I am concerned that, because of the incorporation of the ECHR into Scots law through the Scotland Act 1998, a date has been set by which the guidelines may have changed. Did the Lord Advocate ensure that the guidelines that were in operation before the incorporation of the ECHR were relevant after incorporation?
I am not sure that I understand the question fully, but I make the point that the ECHR does not apply to policing activities until 2 October this year.
So the Scottish police are not acting within the ECHR, despite its incorporation into Scots law under the Scotland Act 1998?
It is my belief that, given that a voluntary code of practice is already in operation, the police are acting in compliance with the ECHR. The point that I am making is that at present they are not required to comply with the ECHR. They will be required to comply with the convention from 2 October 2000.
I have several questions, but other members of the committee may want to speak first.
Like the convener, I am concerned about the speed with which you want us to deal with this bill, which is very complex. I have no problems with having a statute to regulate something that is already happening. We should know what the position is, it should be transparent and there should be codes of practice. Interim codes of practice are at the heart of this proposed bill, but this committee never sees those codes. The same thing is happening with other legislation. We cannot consider the structure of the bill without knowing what is contained in the codes of practice.
I am concerned about our ability to scrutinise the bill, even at this stage. In your policy memorandum you say:
"No formal consultation has been undertaken on the Bill."
It does not bother me if the Executive gets itself into trouble by not taking time over this legislation, but I want to make it plain that the Justice and Home Affairs Committee is not getting a chance to consider it. We have only another two mornings to take evidence on the bill at this stage.
In an interesting short paper by Professor Alan Miller, who is present and from whom we will hear later, he says:
"it is necessary to consider the approaches taken throughout Europe and beyond such as Canada and Australia to take into account a wider range of international human rights conventions and obligations."
Have you done that? Some of the articles that I have seen indicate that much that is contained in this bill, particularly relating to e-commerce, has been rejected by other legislatures.
We need to be careful, as many of the articles to which you refer were written about the Westminster Freedom of Information Bill. The e-commerce controversy relates to the Westminster bill, not this one.
I may have misread this, but does not surveillance relate not only to telephone communications, but to mobile phones and computers?
Angus MacKay indicated disagreement.
That is fine.
My next point relates to comparisons with European practices. If I am making mistakes, it is because of the pressure of trying to acquaint myself at such a rate with what is coming before us, so that we can ask pertinent questions and produce good legislation. What is happening in Europe in this area? Has the Executive taken that into account?
I will deal with two of the points that Christine Grahame made. The first related to codes of practice. What exactly was the question about?
As has happened previously, codes of practice are referred to here as interim codes of practice but the committee does not have sight of them. It is improper for the committee to consider the basic legislation without seeing the codes of practice.
The existing codes of practice are available on the internet, which may provide members with some guidance on current practice in this area. As I said earlier, there is nothing new here. The bill would not increase the powers that are available to the enforcement agencies, but would regulate them in an appropriate way that is compliant with the ECHR. The existing voluntary codes of practice provide some indication of the sort of statutory codes of practice that may come into effect after the legislation is passed.
The codes of guidance that will be attached to this legislation will have statutory force and we will consult on those. I accept that they will follow the legislation, but members of this Parliament will have the opportunity to discuss them fully before they come into effect.
What comparisons have been made with the approach taken by other legislatures and with the situation in Europe?
I am not sure what comparisons have been made. I am happy to check that point and to write to Christine Grahame with an answer. The intention is to develop a coherent regulatory regime that deals with established practices here. As I mentioned at the start, that is part of a process of evolution involving different pieces of legislation that have attempted to formalise and regulate the way in which surveillance can take place. This bill is intended to develop established practice.
Are you saying that if I download the existing codes of practice—I like to be technical—I can be pretty certain that those will be the same as the forthcoming draft codes?
No. If you obtain access to the existing codes of practice, which are freely available on the internet, you will see what the current operating regime is in relation to the existing powers. This bill, if passed, will not extend those powers. You can, therefore, assume that they provide a reasonable basis on which to establish the new guidelines and codes of practice. However, it would not be fair to say that the new codes of practice will be the same as the existing codes.
You said that we will get to see the draft codes of practice. When? What is there to prevent us from considering them as we consider the bill?
I invite Mr Dignon to address that point.
Hugh Dignon (Scottish Executive Justice Department):
Codes of practice are currently being considered by working groups of practitioners in the area from both north and south of the border. When they have completed their deliberations, within the next six to eight weeks, the codes will become available for wider public consultation.
Minister, I wish to ask five questions about the text of the bill. I shall be brief. I do not understand some of what is written. However, certain issues are raised by the five points.
First, on section 1(5), I do not understand what type of surveillance is being suggested. I can envisage circumstances where surveillance that is apparently not supposed to be intrusive is in fact intrusive. Perhaps I have completely misunderstood what the section is dealing with, but it is not clear to the average informed layman what is meant here.
In two further sections, 3(3) and 4(3), an authority is given to ministers to introduce orders for other purposes. It seems as if a fairly extensive power is being given to ministers. I appreciate that an order has to come before Parliament, but what is intended here? There are always unforeseen circumstances but surely, with many years experience in this field, we ought to be able to get a proper list that Parliament approves. There would be no need for this provision, which may give ministers a fairly extensive power.
Section 11, "Quashing of authorisations etc", seems fine, except for the destruction of evidence. If an unauthorised or illegal surveillance order is placed on someone, it is not just a question of "may destroy the records"—the records of that unauthorised surveillance—as indicated in sections 11(4) and 11(5); "must" should be inserted instead of "may".
Further, even if there is an inconclusive surveillance, there is a strong argument that records "must" rather than "may" be destroyed. When records have been obtained in an unauthorised or insubstantial manner, we do not want them hanging around so that they may be used against someone on a later occasion.
I was interested that you mentioned redress. I have looked through section 19, "Complaints to the Tribunal", and I cannot find any reference to redress in the bill. It may be my mistake, as the text is difficult to read. As I read it, section 19 says that one can make a complaint and the tribunal can judge on that complaint, but then, "Thank you very much", end of story. I need some evidence of how redress is to be obtained for the individual.
Last but not least, I have tried my best to understand section 26, "General saving for lawful conduct", but frankly I cannot. Is it an excuse clause? A get-out clause? What is its purpose?
I am sorry to burden you with five questions. If you wish to write in reply, that is okay. However, important issues are raised by the draft bill. Maybe I have misunderstood some of the sections, but those are the type of issues that the committee will wish to consider.
Kate MacLean is whispering to me that, in the spirit of "Who Wants to be a Millionaire?", I should elect to phone a friend on some of those questions.
Now, minister, we know you enjoy your visits to the Justice and Home Affairs Committee.
I elect to write to the member on his last point, on section 26, because it is the most complex question. It may be the most satisfactory solution for all concerned if I try to explain in writing what is intended.
The first question related to section 1(5). Such a circumstance might occur when a directional microphone or a camera with a powerful lens was being used external to a building or a vehicle in order to gather information, but where such a device would not be capable of gathering information of the same quality or detail as a device placed, for example, within a car.
A camera would not generally be used within a car anyway, but it would not be regarded as intrusive, since all it would reveal was who was in the vehicle. A directional device might be used to try to pick up elements of a conversation within a vehicle but, for a number of reasons, it might be incapable of producing the same quality or consistency of information as a device planted within a vehicle. For example, there may be loud traffic or difficulty with the signal because of the distance. That would not be regarded as being as intrusive.
However, if the device were capable of picking up information that was as detailed as if the device had been placed within the vehicle, that would be regarded as intrusive. In those circumstances, a different approach would require to be taken. It would fall within the competence of another area of the bill.
I understand the point about vehicles, but let us say we are in a house and there is a directional microphone somewhere outside, that directional microphone might be as intrusive as something that was hidden under a desk.
In which case it would require to be dealt with under the part of the legislation that deals with intrusive surveillance.
What happens if somebody says, "It's outside—it is not intrusive surveillance", and it is only found to be intrusive after the event?
We would expect a view to be taken at the outset about the capacity of the device being used. That may not satisfy you, but that is the answer to that point. We are at the pre-legislative stage and we have the opportunity to explore those issues further.
On sections 3(3)(d) and 4(3)(d), which are similar or the same, I cannot remember the precise phrase that Euan Robson used—I think it was catch-all—but at present the Executive does not have any specific additional purposes in mind, so it is a contingency measure. However, it would not be open to an authorising officer to add to the list of the lawful purposes, if he or she felt it necessary. That would need to be done by Scottish ministers. In that event, any purpose that Scottish ministers wished to add to those for which surveillance and covert human sources may be used would have to be compatible with article 8 of the ECHR. If it were not compatible, it would defeat the purposes of the bill.
Secondly, the Parliament would have the opportunity to strike down the purpose proposed by the minister because, as it says in the two relevant sections, the direction from Scottish ministers could only be given by an order made by the ministers before the Parliament; therefore, the Parliament would have the opportunity to debate and refuse.
In other words, Parliament would decide on the order before any further purpose was added.
Yes.
So there is no way in which that purpose could be brought into effect without Parliament, there is no temporary or emergency provision—
Within the legislation, there are emergency provisions for certain circumstances, but not in relation to that point.
Thank you.
The next point is—
Destruction of records. It is the point about whether, when there has been an unauthorised surveillance, the records "must" rather than "may" be destroyed.
Section 11(4) refers to two circumstances, one in which an ordinary surveillance commissioner quashes an authorisation under the section following a re-authorisation and one in which the surveillance commissioner quashes an initial authorisation.
The surveillance commissioner would be a senior member of the judiciary, and I presume that members would have some confidence in the view that such a person would take. That is not to say that that would necessarily satisfy members about the wording of the proposed legislation. I accept that there this a distinction between "may order" and "must order"; that is a matter that members will want to debate.
It is worth debating whether it is appropriate for a commissioner to be required to direct the destruction of evidence that might still be admissible, depending on the circumstances in which they decide that the surveillance was inappropriate. We have to bear it in mind that that senior member of the judiciary will be taking a view that he or she does not share the judgment of the authorising officer about the circumstances at the time of the initial grant or of a subsequent renewal. There are several issues to be explored.
The final point was on redress procedures, under section 19. If something goes badly wrong and there is a complaint to the tribunal, and the tribunal finds in favour of the complainant, what process is followed to provide redress for the complainant? I cannot find anything in the bill, although the minister alluded to it in his opening remarks.
I will have to write to Mr Robson on that point. As I said, procedures are being developed and are the subject of current discussions, some of which are about the involvement of Scottish ministers. Once those discussions have reached a resolution, we will bring the matter back to members for further debate. In the meantime, I will write to the member on the matter.
I would like to clarify this part of the bill. Is phone tapping included in the UK bill or in the Scottish bill?
That comes under part I of the Westminster bill.
Who has the power to authorise a phone tap in Scotland?
At present?
Where will that power lie eventually?
Once the legislation has been passed, that power will lie not with Scottish ministers, but with the director general of NCIS and a range of other specified individuals. I can ask for the list to be read out if necessary.
Colin Baxter (Scottish Executive Justice Department):
Perhaps I can clarify that point. The interception of communications is a reserved matter; the Home Secretary is responsible for authorising interception. However, there is an order that devolves to Scottish ministers the power to authorise interception in relation to serious crime. That is a power that lies with Scottish ministers under Executive devolution.
Is that clear?
Yes. There are several references to surveillance of which the subject is unaware. I am thinking of section 1(8)(a), which states that
"surveillance is covert if, and only if, it is carried out in a manner that is calculated to ensure that persons who are subject to the surveillance are unaware that it is or may be taking place".
What is the test for being unaware? Is it objective or subjective? There have been notable cases in the past when the Home Secretary gave an authorisation to tap the phone of someone—Campbell Christie, the general secretary of the Scottish Trades Union Congress, Joan Ruddock and others—without their knowledge. How is the awareness of the person under surveillance tested?
The section refers to surveillance—following and observing a person's comings and goings—rather than the interception of communications. The intention would be that the surveillance would be covert—the person would not know that they were under surveillance.
Euan Robson's questions have helped to translate the jargon. Can you give me two or three common circumstances in which the bill would apply?
Let me see. Let us take the issue of drugs. An individual might be suspected of being involved in the distribution of drugs on a scale that would constitute a serious crime. Officers of a particular enforcement agency might apply for authorisation for intrusive surveillance to establish the nature and extent of the illegal operation and who else might be involved. They might want to determine whether there is a network of distribution, the source of supply and how the network operates. Intrusive surveillance would be authorised in those circumstances. However, I remind members that those are the current circumstances—no new police powers are being authorised under the bill.
I understand that, but I want to be clear.
Would it be helpful if we were to construct two or three such scenarios to illustrate how different parts of the bill might come into effect?
Yes. I would like an example of at least one hypothetical public safety scenario and one protecting public health. There are separate paragraphs in section 3 on preventing crime or disorder, on public safety and on protecting public health. I would like to know what the differences are and to have some examples of how the bill would apply in those circumstances.
That might be helpful to others as well. I will ensure that we do that as soon as possible.
Thank you.
We have been talking about the fact that telephone tapping and e-commerce come under the Westminster bill. Is there some confusion about who is responsible for what? For example, if officers are tapping the telephone of a drug dealer, as well as focusing a camera on their house and looking at their e-mail, will the officers have to apply to different people for permission to do those things?
In the example that you have cited, individual Scottish police forces would be allowed to carry out such activity, under the auspices of part I or III of the UK legislation.
What about the draft bill?
Scottish police forces will operate in terms of the intrusive, covert surveillance that is set out in the draft Scottish bill, which dovetails with the UK legislation.
Will the police have to apply on two separate forms or to two different people? Will things be more complicated?
No, the legislation should simplify things. It unifies, or distils, a number of pieces of existing legislation. It makes clearer the duties and obligations on the authorising individuals and on the police or another agency that seeks to use the particular surveillance method. It makes clear the circumstances in which such surveillance may be used.
I am not sure that my answer has been helpful.
I am not sure that it has been, but thank you anyway.
Minister, if Euan Robson, who is our legal eagle, has difficulties, you will recognise the difficulties that some of the rest of us have.
Section 1(2)(a) refers to
"specific investigation or a specific operation".
To follow on from the comments that you made to Pauline McNeill, I feel that the word "specific" needs a definition. You referred to drugs; I wonder how far "specific" needs to go when a particular authorisation is being considered. In the war against drugs, would one authorisation cover a whole range of localities, individuals and circumstances?
Section 1(2)(c) covers surveillance that is undertaken
"otherwise than by way of an immediate response to events and circumstances".
That suggests that there could well be emergencies in which surveillance could be put into operation without authorisation. Is that a correct interpretation?
To answer your question on the definition of "specific", my understanding is that an individual or group of individuals would have to be clearly focused on.
Would people be named?
Yes, they would have to be named in the authorisation.
Your second question was on section 1(2)(c). It is correct to say that, in an emergency or in pressing circumstances, there could be directed surveillance. However, that would be subject to immediate ratification, and would happen only in specified circumstances.
That seems quite wise.
I would like to ask about the use of "covert human intelligence sources". In recent court cases, vulnerable people have been forced to reveal their identities in the full view of the court. There is a human rights element. Does the bill seek to protect such witnesses?
No, it does not. I do not think that it would be appropriate for the bill to do that, although it might be appropriate for other legislation to do so.
Given that there is a recognisable concern and that we are talking about human rights, is not an opportunity being lost?
I think that what you suggest would almost certainly be declared to be outwith the scope of the bill; I am not sure that the Presiding Officer's legal advisers would accept that that area falls within the title of the bill.
I can think of advantages of doing what I suggested, but for the moment, I will accept that it falls outwith the scope of the bill. Perhaps the question could be raised again at a later date.
I might have picked you up wrongly, minister, but I think that you said that you thought that the chief surveillance commissioner would be a senior member of the judiciary. Section 27, under the heading of "Interpretation", states:
"‘Surveillance Commissioner' means a Commissioner holding office under section 91 of the Police Act 1997 . . . and ‘Chief Surveillance Commissioner' shall be construed accordingly".
What does that mean? I do not understand how it ties in with your comment on the chief surveillance commissioner being a senior member of the judiciary.
Section 91(2) of the Police Act 1997 states:
"The persons appointed under subsection (1) shall be persons who hold or have held high judicial office within the meaning of the Appellate Jurisdiction Act 1876."
I am certainly unable to quote from the 1876 act.
It was not a trick question; I just did not know that judges lurked somewhere in a police act. Your answer was helpful.
Are there any other questions for the minister?
He can have a final question from me, if nobody else is asking one.
Paragraph 21 of the policy memorandum states that the bill
"will have no impact on . . . island communities"
or
"local government".
How can that statement be made when the bill obviously affects everybody in Scotland?
The intention of the statement is to point out that there is no particular or specified impact. That does not mean that there will be no general impact.
I am relieved to hear it.
Does Euan Robson have a final final question?
Yes, final final. Section 2(2), on lawful surveillance, states:
"A person shall not be subject to any civil liability in respect of any conduct of his which—
is incidental".
My concern is that that seems to give carte blanche to people who are involved in surveillance activities, absolving them from liability. For instance, if someone is filming someone else from a car and runs into another vehicle, do they have no liability for the accident? We cannot have a situation in which people who are involved in these activities are not open to normal civil liabilities—except when their conduct is directly related to the task in hand. Perhaps the minister could consider that point at a later date.
Mr Robson makes a serious point that deserves consideration. We will take it away; once we have given it further thought, we will write to Mr Robson and then perhaps have further discussions. I can see the importance of his point.
The minister has undertaken to do quite a lot of writing. I do not want unduly to overburden the minister and his team, but the committee has only two more scheduled meetings, for taking evidence at stage 1. They are next Monday afternoon, and the following Monday afternoon. It will probably be essential rather than just useful to have answers to some of the questions that we have asked this morning before we ask more questions of other witnesses.
For example, many of the questions relate directly to the Association of Chief Police Officers in Scotland, representatives of which will give evidence next Monday afternoon. I appreciate that the time scale is short, but it would be greatly appreciated if we could get as much information as possible as quickly as possible.
In dealing with the Abolition of Feudal Tenure etc (Scotland) Bill and the Adults with Incapacity (Scotland) Bill, the committee and the Executive have developed a constructive relationship. Notwithstanding the delay between the introduction of the Westminster bill and that of the Scottish bill, I hope that we can continue that. I hope that I can ensure that information is passed on as quickly as possible on a range of matters. In this instance, we will try to ensure that before the weekend, members will have received the written replies that we have undertaken to provide.
That would be ideal. I raise the matter because the answers to questions that we asked regarding budget information came quite late in the procedure. We had to proceed without having seen the information. Our meetings are weekly and we need the information as we go.
I will discuss with officials ways of providing the information. We will undertake to get it to members by the weekend. If members need information on anything, they can contact me directly and we will try to ensure that there is an immediate turnaround.
That concludes item 1 on the agenda, but it does not excuse the minister, who will have to stay for item 2.