Item 2 on our agenda is the draft regulation of investigatory powers bill. We have further evidence to take on the general principles of the draft bill, and we welcome witnesses from the Association of Chief Police Officers in Scotland: Assistant Chief Constable Graeme Pearson and Detective Chief Superintendent Gordon Irving. I do not know whether you wish to take a few minutes to make some general comments or whether you are ready to go straight to questions. The Scottish bill pertains almost exclusively to the actions of the police in Scotland in so far as covert surveillance techniques are concerned. We will be focusing on that.
It might be helpful if we give a brief introduction. The draft regulation of investigatory powers bill does not propose new powers for the Scottish police service. The bill that is under consideration today is on directed surveillance, intrusive surveillance and the conduct and use of covert human intelligence sources.
Could you clarify that? Evidence that we heard last week suggested, as you have done, that this draft bill would not introduce anything new, but would simply put on a statutory basis what was being done in practice. What powers do you have at the moment to conduct covert surveillance operations?
At the moment, the power lies in a code of practice, which has been designed by both the Association of Chief Police Officers and the Association of Chief Police Officers in Scotland, along with other law enforcement agencies. The code of practice came into effect from 1 January, with full enactment from 1 April. We saw it as a temporary solution until legislation went before both Parliaments.
A code of practice is not a power under which you can operate. What is the statutory basis under which you will conduct covert surveillance operations until 2 or 3 October?
At the moment, operations come under the normal criminal law—operations to investigate crime and to prevent crime. With the introduction of the ECHR, we saw that it would be necessary for the police service to have the legislation in place that would underpin our activities.
So this legislation would impose statutory controls where, at present, there are no statutory controls at all?
Yes.
May we have a copy of your code of practice?
Yes, I can arrange for that.
Thank you—that would be very useful.
What happens when authorisations are granted that are subsequently found to have been granted for the wrong reasons or to have been improperly granted? In the draft bill, it says that evidence gathered in such circumstances "may"—"may" is the word used, not "must"—be destroyed. In circumstances where information has been gathered when there was no valid authorisation for the surveillance, what would be the police's view? Would the police presume that the evidence should be destroyed rather than not destroyed?
Where evidence had been gathered improperly, or where circumstances had changed and we were no longer interested in a particular individual, I think that our normal approach would be to dispose of the evidence. It is not our normal practice to retain information that is neither pertinent nor appropriate. In the circumstances that you outlined, that principle would have been breached.
Would you be comfortable with a presumption of destruction unless there was good reason not to destroy? Is that how you operate anyway?
Yes.
I apologise for being late. I was not back as quickly from the Borders as Euan Robson was.
I do not have concerns in that regard. It is difficult for the draftsmen to outline at the outset all the circumstances that would fall within the remit of the legislation. We have operated under guidelines for some considerable time and the evidence of our operations is such that we have had an absence of complaint about our activities and about the focus of our inquiries. I am not complacent about that, but evidence of how the legislation is enforced, once enacted, may make it appropriate for you to return to the subject and redefine problem areas.
Do you tell people that they have been under surveillance when that surveillance has led nowhere?
The short answer is no.
I see. That point was also raised by Professor Miller.
There are strict guidelines on which individuals we may survey. It would be inappropriate for us to tell an individual that he had been under surveillance, as it might detract from a future surveillance operation.
We need to see those guidelines, just as we need a code of practice on surveillance.
In the main, it is highly unlikely that such an authorisation would take place. For instance, if an officer who was employing a normal, routine directed surveillance found that, in the course of the surveillance, he had moved to intrusive surveillance on a temporary basis, it would be incumbent on that officer to apply retrospectively for authorisation for the other form of surveillance. There are circumstances in which an individual could be following someone and have to step off into private property to avoid detection.
I was not talking about moving from directed to intrusive surveillance. I wondered about the basis of the application for surveillance in the first place. You cannot just say that you want to survey someone; you must have a purpose. If, in doing that, something else comes to light, can that be authorised retrospectively? Suppose you were looking for drugs and you find something else.
If one had a directed surveillance and found something else during the course of that surveillance, it would be appropriate for the police service to collect that intelligence to be utilised. Is that the point that you were trying to make?
I think that it might be challengeable on that basis.
That is not a matter for the witnesses.
I find it interesting that the police have said that, as it might leave things open to challenge.
The police accept that they might be going into a new scenario.
Very much so.
If you undertake surveillance work on somebody, realise after a week or two that you have got things completely wrong and are wasting your time, and pull the plug—as I am sure must happen from time to time—or if something goes wrong for whatever reason, how would section 19 of the draft bill, on complaints to the tribunal, come into play?
Let me put it in context. Surveillance is an extremely expensive resource for the police service and is not entered into lightly. There are numerous checks and balances in relation to authorisation of surveillance. A complaint about intrusive surveillance would have to go to the commissioner in the first instance in any event before full implementation. If a complaint were to go to a tribunal, we would see that tribunal as a one-stop shop for complaints.
That is not really what I am asking. How does that remedy ever get triggered? By definition, nobody will know that they are under surveillance. From your point of view, what could possibly be the purpose of section 19? I make no judgment about this, as I understand the position that the police are in, but it would be the police's view that, if surveillance were properly conducted, nobody would ever know that they were under surveillance. Therefore, nobody would ever know whether they were in a position to trigger the remedy under section 19. Do you understand that Catch-22 position? Will section 19 therefore be a bit academic in practice?
To some extent, the Catch-22 position that you have outlined is part of the difficult area that the committee is examining. As Mr Irving has indicated, enormous hurdles must be overcome before we activate policing of that nature, and those checks and balances should have ensured that our target areas are as accurate as it is humanly possible to make them. It is true that there may be people in the public domain who are oblivious to the fact that they have been under the attention of the police. However, it is difficult to imagine a process whereby we could send them notification after the event without affecting a continuing inquiry. Although one individual might innocently come within the confines of a surveillance operation, others who are connected to that individual might still be live.
Does that cast some doubt on how useful section 19 will ever be in practice?
It is always useful to have the ability to follow through. How one activates that ability is, I accept, very difficult in the circumstances that you outlined.
It does not seem likely that many people would ever be in a position to do anything about it, as they would be unlikely to know that they were under surveillance.
The introduction of legislation will make such possibilities less and less of a daily occurrence. The fact that there is guidance from the Scottish Parliament about the rules and directions that police officers should follow ensures that our operational guidelines will follow through, not only on the word of the enactment but also in its spirit. We already have very strong guidance to officers to prevent such allegations being made in court.
At the same time, you must always be concerned that any evidence you collect will be admissible in a trial.
Indeed.
I am having some difficulty making this real for me. I want to pick up on some of the issues that Roseanna Cunningham raised about section 19. What is the situation now? What scope do you have at the moment? The bill refers to agencies, but what agencies are we talking about? Is it mainly the special branch?
The agencies to which this provision might apply include HM Customs and Excise and the security service. Under the police force would be included the National Crime Squad and, possibly, the Scottish Crime Squad.
Is the special branch included under the police?
It includes any organisation with a—
Would the special branch be the main agency as far as the police were concerned?
No.
When you suspect someone of a serious crime, you obviously have some evidence to start with. How much evidence would you have to collate before triggering a request for covert surveillance? Can you give us an example of when such a request would be triggered?
As I said earlier, covert surveillance is a very expensive resource, so we do not use it at the drop of a hat. It has to be necessary and proportionate. There has to be plenty of intelligence available to those who give the authorisation, to ensure that the resources being deployed could not be deployed better elsewhere. There would have to be numerous pieces of intelligence to suggest that the individual concerned was involved in criminality.
You say that someone would ask for authorisation. In the police force, what rank of officer would request authorisation of further surveillance?
It would probably start at the level of the inspector who was the team leader for the intelligence-led operation concerned. A directed surveillance would be authorised by a superintendent. Intrusive surveillance would be authorised by a chief officer.
I would like to ask you about some issues that Allan Miller raised in his evidence to the committee. My question relates to section 27(7)(b), on interpretation, which refers to one of the tests as being
The provision could apply to a member of a drugs fraternity that is normally made up of two, three, four or five persons coming together for a purpose.
I think that the subsection is worded deliberately so as not to mention serious crime. It refers to "substantial financial gain" or
Exactly which subsection are you referring to?
I am referring to subsection (7) of section 27, headed "Interpretation", on page 19 of the bill. It reads:
Do you want us to interpret each of those?
I wondered whether you thought you had those powers now. We read the subsection as going beyond surveillance of someone suspected of a serious crime.
It could apply to football casuals who are going to an area to cause trouble prior to a football match. Surveillance of that sort would take place at the moment.
Could it be extended to apply to Greenpeace or Friends of the Earth? I have in mind concerns about issues such as genetically modified crops.
At the moment that is not the case in Scotland. Any groups subject to surveillance would have to be very extreme. There are plenty of other cases involving drugs and criminality for which we would want to use surveillance.
So you think it is about priorities.
Yes.
What about those of us who are members of political parties that wish to overthrow the British state?
The subsection refers to "violence" and "substantial financial gain". That indicates the level of threat that we would have to perceive before involving ourselves in this type of surveillance.
I am not convinced that that is what the subsection says, as it finishes by referring to "substantial financial gain" or
We would if we suspected that there would be major disruption to public order.
So a senior officer would authorise surveillance of a demonstration because it would amount to
No, it would probably be surveillance of an individual or a few individuals within a group who were identified as persons likely to cause major public order problems.
In those circumstances, there would need to be a perceived threat. In my view, the existence of an organisation pursuing a common cause would not be sufficient to justify covert surveillance.
You talked about the drain on resources that covert surveillance imposes and said that, because of that, you had to think carefully about whether it was necessary. Roughly how many surveillance operations take place in Scotland each year—I do not expect a precise figure—and roughly how many people would be subject to surveillance?
Before giving the figures, I want to add one caveat. Expense is an important consideration, but so is the appropriateness of the technique in relation to people's civil liberties—the two go hand in glove. It is not a matter of whether we can afford it, but of whether that level of police activity is appropriate in the context. The total number of surveillance operations across Scotland is somewhere in excess of 1,500 a year.
That is quite a lot.
That is across the whole of Scotland and in all circumstances—the use of informants, ordinary surveillance and intrusive surveillance. That is the figure for all categories of surveillance.
Will all categories of surveillance be covered by the legislation?
Yes. Directed or intrusive surveillance will be covered. That means all 1,500 operations.
Roughly how many people are under surveillance? There may be more than one person per operation.
It would be difficult to give that figure without going through each individual case.
But would not there frequently be more than one person per operation under surveillance?
In the main, one person will be under surveillance. In some operations there will be two or three. It is extremely difficult to give the exact number.
In a sense, this question follows on from some of the points that Pauline McNeill raised. Section 3(3) talks about authorisations and indicates different categories of activity. I am curious about the difference between them.
The recent demonstrations in London are an example of preventing disorder and acting in the interests of public safety—members of extreme groups taking over a demonstration, causing damage and potentially endangering members of the public.
But can you differentiate between preventing disorder and acting in the interests of public safety? I am curious as to why one is bracketed with detecting crime and the other is separate.
It is all in the drafting. As far as we are concerned, preventing disorder could be something that is totally separate from detecting crime.
Yes, but how is that differentiated from public safety?
Local authorities would perhaps be interested in preventing the spread of E coli, for instance, if information came forward about—
Is not that public health?
Yes—or public safety.
We ask the same question of everybody. There are a number of different categories and we need to try to establish what each of them means in practice. Your answers suggest that the definitions are not really that obvious.
Public safety is probably someone else's expertise. It might include, for example, the sale of faulty goods—refurbished refrigerators and that kind of thing. Public authorities might want to investigate the circumstances, but it is not something in which we would usually be involved.
Maureen, did you have a question?
You have covered the questions I wanted to ask, convener.
Subsection 2(2) talks about civil liability and suggests:
If an officer involved in a surveillance operation strayed temporarily on to private property, that officer would not be subject to any civil liability. However, if the officer was filming and was involved in a road accident—although I find it hard to imagine circumstances in which he would be driving and filming at the same time—he would be subject to the same procedures as any other member of the public.
I am concerned about whether that subsection gives carte blanche to anybody involved in certain authorised activities. Will they have no civil liability in any circumstance? You gave the example of an officer going into private ground in the course of his duty. If he inadvertently let a pedigree dog out of its kennel or out of the garden and the dog was run over—I am trying to think of circumstances that might occur—is it currently the case that the officer would have no civil liability whatever?
We need to get back to the idea of what is proportionate. If an officer strayed off the course of a surveillance on to private property and inadvertently opened a gate and the owner's dog ran away, I would hope that he would not be subject to civil liability. However, if the officer were involved in criminality—for example, if he committed an offence by driving a vehicle and filming at the same time—he would have to be subject to the same procedures as any member of the public.
I was not suggesting that the officer was driving, but he might be filming in a car whose driver drives into the back of another car. I was not suggesting that the police drive and film at the same time. I am sorry.
It would be difficult to outline all the sets of circumstances in legislation, but the use of surveillance has to be proportionate.
Thank you.
I have two questions. My first follows on from Roseanna's question on subsection 3(3) about the various categories, which are also reflected in subsection 4(3). Subsection 3(3)(d) requires authorisation
We have not exercised our minds on that question, as it is none of our business, to be quite honest.
But from your experience, does everything fall into the other categories?
Anything that has been of interest to the Scottish police service has fitted into the categories that have been outlined so far.
So, you can think of nothing that might require a catch-all provision.
As far as the search warrant is concerned, the police officer would go to the procurator fiscal. Thereafter, the application would, in short, go before a sheriff, who would grant—or otherwise—a warrant for search. As far as—
That was too short. Would the warrant be for a specific purpose?
Yes.
How much has to be specified? That is what I am trying to get at.
You would have to specify the type of material that you were probably looking for.
That is what I am after.
That might be stolen property, firearms, or whatever. You would also have to show that you had good reason for making the application.
Right. What would happen if you found something else while you were searching?
It would be incumbent on you, if you were searching, to seize that property.
If, while you were searching with that warrant, you found something else—say drugs—instead of weapons, what would happen?
You would seize it and take forward what you found.
Sorry?
You would seize it, and report the person concerned to the procurator fiscal.
And then?
The matter would go before the court.
Would that be solid? I do not know; I am not a criminal practitioner.
It is fine.
Okay. That is fine. I just wanted to ask.
We are getting ourselves into a bit of a hole about how the system will operate in practice. Fortunately, the vast majority—a huge percentage—of what we are dealing with is serious crime.
I understand that.
Unfortunately, the individuals who are involved in serious crime do not fall into one category of crime; they tend to be multi-talented. As a result, although we may pursue them in one avenue, other avenues will crop up. As Mr Jackson said, the process that has been outlined has been accepted by the Scottish courts.
Say that you found neither drugs nor firearms, but discovered that the individual was planning a demonstration about genetically modified foods or something. Would that come under public interest?
There would be no criminality involved in that, so we would have no interest in it.
One man's disorder might be another man's demonstration.
My only concern about that is, where is the criminality element about protecting public health or the interests of public safety? Perhaps the police do not get involved in such things; we may be talking about other groups of people. There could be serious public health matters that do not involve any criminality.
Yes.
You could be investigating drugs, then realise that you have stumbled across something completely different, which does not involve criminality but is about public health.
Yes.
On the basis of what you have said, if we follow through on existing practice, you would be equally entitled to draw that to the attention of the relevant authorities.
We would have a public responsibility in those circumstances.
Yes.
You may or may not want to answer this—we are just trying to get honest answers, if possible. Do you think that putting all this in statute is a good thing, or would the system be better left the way it was?
The legislation has been brought in, primarily, to ensure compliance with ECHR when it is introduced on 2 October. I think that it is a good thing. It provides regulation for such activity and an overview and redress for members of the public.
Will it have any adverse effect on policing ability? That is what some people worry about. I suspect that one of our number, who is missing, might worry about that quite a lot—if I may say so in his absence. I can anticipate the line that some people would take and imagine them having a legitimate worry that we were shackling police effectiveness.
It is down to the committee's abilities to try to ensure that that does not occur. As I said in my introduction, our real areas of concern are serious and organised criminals. They move quickly, and have the ability to use technology and move before the authorities can get through the process of debate, committee and discussion.
The example that is in my mind is in section 4, which deals with "covert human intelligence sources". That is a lovely, lovely phrase for something for which we have used a simpler term for many a long year. In section 4(6), there are strict rules about how that source has to be dealt with. He has to have a handler, and the handler has to have another person, presumably senior, who is handling the handler and the source. Then someone—it does not have to be another person, it could be the same one—keeps records of everything that the source is doing.
All the admin, as you describe it, is there not only to ensure that we can demonstrate externally the appropriateness of our relationships with informants, but to protect individual officers, who—as you will know—have in the past been subject to allegations because of their relationships with individuals who are seen as being part of the criminal world.
Again, this might not be a fair question. You have said that you have a dim memory of being a young detective constable. I have an equally dim memory of the current chief constable of Strathclyde police being a young detective constable and behaving in certain ways, which were perfectly right, but were not as regulated as they would be nowadays.
I do not know whether to feel insulted by that remark or not. [Laughter.] Although it has been some time since I operated at detective constable and detective sergeant level, I hope that I am not out of touch with the reality of what is happening. Detective officers have a difficult role to play in the modern world. Things are complicated out there. Some of the criminals that we deal with have access to substantial wealth and resources. It is incumbent on the Scottish police service to ensure that its officers are properly protected—not only in a physical sense, but in a moral sense—from attempts to corrupt them or to make unfounded complaints against them.
I am sure that it is for their benefit. I find myself in an odd situation, as I have spent all my life arguing with the police about keeping the rules. I now find myself wondering whether we are going to over-shackle them, which is a slightly odd position for me to be in. We must strike a balance between protecting officers and ensuring proper public accountability, while also ensuring that the police can operate. Do you think that the bill strikes that balance?
From a practical point of view, the bill strikes the balance perfectly. The officers are aware that there are guidelines and checks and balances. The senior officers are there to ensure that those are implemented. Young officers who handle informants are reassured by the fact that everything that they do is supervised. I think that the bill strikes the right balance.
Authorisations for covert intelligence and direct intelligence will be granted by a rank to be determined by the Scottish ministers. At what level do you think that that should be?
For directed surveillance, it should be superintendent level. For intrusive surveillance, it should be—
The rank is specified for intrusive surveillance, but for covert surveillance—directed surveillance and the use of informers—the rank is to be specified.
I think that it should be superintendent rank. That activity is something that happens daily; it is part of the bread and butter of intelligence-led policing.
Except in emergency circumstances, the intrusive surveillance under this section must be authorised by the chief constable. Chief constables tell us that they are very busy people and in my experience they are. It is a huge job to be chief constable of, for example, Strathclyde. Does that provision put an extra burden on that one person in the force or is intrusive surveillance not such a big issue?
The suggested step of intrusive surveillance is so serious—and is viewed as such within the service—that the chief constable should be involved in any decision. That indicates the approach that is taken internally to all the matters that we have discussed this afternoon. None of these avenues of investigation are taken willy-nilly; none of them are pursued casually. If there is a proposal to go down those roads of investigation, operational officers take extra steps to ensure that the information is accurate, that the means that are being proposed are appropriate and that no other avenues can be followed to achieve the objective. That is reflected in the seniority of the police officers who will check and decide whether the proposed action is appropriate.
If you are saying that the chief constable's head is on the block, you had better get it right.
If we are saying that the chief constable's head is on the block, I think that he would like to be part of the decision-making process.
Fair enough.
Thank you very much for coming to speak to us. No doubt we will see you again, as part of some other inquiry.
We are grateful, once more, that you thought fit to invite us to comment on a measure. I hope that the contribution that we make will be of use to you.
Can we be clear that we are talking about the Scottish bill alone?
Yes—the Scottish draft bill. We also have concerns with sections 13, 15 and 16, which leaves only two or three sections that we do not have concerns about. Having said that, I know that committee members will have issues that they want us to focus on, so it is over to you to direct us.
You will have heard some of our questions to the police. May I direct you to section 19 and the issue of the complaints tribunal? What is your response to the reasonable concern that the section is almost unenforceable since, by definition, how would anybody ever know that they were under surveillance in the first place?
We have not worked out an answer to that. On the one hand, the tribunal is a sensible solution. On the other, as you say, if people do not know that they are under surveillance the tribunal might never be used. I imagine that they would find out after the event.
I have a question on the helpful note that you gave to members. The police evidence was interesting, in that they said that one of the reasons for the bill was to ensure that the codes of practice under which they operate comply with ECHR. Naturally, as a committee and as a Parliament, we have a responsibility to ensure that the bill does that. However, it is interesting that you have major concerns over the bill's compliance with ECHR. In particular, you refer to article 6 of ECHR and the right to a public hearing before an independent and impartial tribunal. You highlight a possible conflict of interest when a minister of the Crown authorises a warrant to deal with something that is in the interest of the Crown. Could you expand on that? Do you have a possible solution to the problem?
The starting point is that ECHR sets out de minimis rules; that is, all contracting states must comply with its basic points. That is the minimum, but we can strive to have more than the minimum in our law. From case law that I have come across, it may be argued that the granting of warrants by the secretary of state is compliant with the convention. However, to protect individuals, it may be better to have some form of judicial recourse, and a right for sheriffs to grant some of the authorisations that are referred to in the bill. For example, with regard to search warrants and other types of orders, it is common that recourse may be had to a sheriff, therefore it might be appropriate to give consideration to such recourse in the bill.
The problem with that goes back to Roseanna Cunningham's point. If someone does not know that a warrant to undertake surveillance has been applied for, how can they request judicial recourse?
That depends on the way in which authorisations are granted. Rather than the secretary of state granting authorisations, it could be a case of the police applying to a sheriff for them.
The bill that we are dealing with does not involve the secretary of state granting authorisations. We must be careful. You are asking questions about the UK bill, Michael.
Yes, but that is what was referred to—
I know that the Law Society's note refers to the UK bill.
In Scotland, senior police officers would grant authorisations.
Yes. Because we have two bills, one relating to the police in Scotland and the other—
Could not the same point therefore be argued for a senior police officer?
Yes; it is a similar point. Instead of applying to a senior police officer in Scotland, recourse could be had to a sheriff.
The other point that you highlighted concerned privileged information. You referred to the legal profession's privilege with regard to access to information. Obviously, that is an issue of concern for your profession. Does similar concern extend to the medical profession?
Yes. The legal profession operates two different kinds of confidentiality with respect to information. One is privileged information, where we are operating as part of the justice system and people are seeking advice. The other is confidential information, which is a lesser form of confidentiality, when we are doing transactions for people. There is a concern with privileged information. I do not think that it would ever be proper for a lawyer to be a covert human intelligence source in the privileged sense, but it could, and would, happen for confidential information. One would have thought that a doctor or clergyman should never be a human intelligence source. There may be certain occupations that should never be used in that way.
I wish to ask a question on civil liability in section 2. Should I be concerned about the phraseology of the section, which suggests to me as a layman that in almost no circumstances would there be any liability if I were injured as a third party when caught up inadvertently in lawful surveillance? Am I missing something, or do I have grounds for concern?
We would seek clarification of the extent of the immunity from suit, in particular in relation to section 2(2)(a), which states that a person will not be subject to any civil liability in respect of conduct that is
Apart from that general point, my concern is directed at immunity from breach of confidentiality and breach of the right of privacy. May I talk about privacy, convener, because there is an issue that is of more general concern? The bill and its UK counterpart are based entirely on the concept that the only problem is with the public authority. It is true that ECHR and the Human Rights Act 1998 are about the public authority, but one of the duties of the public authority is to secure the rights of the citizen under ECHR against anyone, including against the private sector. There is nothing in the proposed legislation that gives any code or guidance for private surveillance, which is not authorised by any public authority.
"This bill"? The Scottish draft bill or the UK bill?
The Scottish draft bill. It allows for dealing with the situation that I described and provides for the protection of someone who finds themselves in that position. Section 2 overrides not only questions of confidentiality, but any question of rights of privacy, even in the private sector—and that is coming up under ECHR, one way or another.
Do you have further questions, Euan?
No—I will need time to take in those comments.
I am finding it difficult, when we are working just a little bit on a bill, to keep to the agenda. I want to ask Michael Clancy about the Law Society's note to us. When you refer to clause 10 allowing
Yes.
So I do not need to go and look at all that?
No, you do not.
I was just asking about authorisation of certificates and of the police. That is not relevant?
The note to which you refer is about the Regulation of Investigatory Powers Bill, not the draft regulation of investigatory powers (Scotland) bill.
I understand the problems of separation of powers for the tribunals and appointments, with regard to ECHR. Perhaps this is not in the draft Scottish bill either. Professor Alan Miller noted that the tribunal—the creation of which is provided for in the bill—can consider only the procedures that have gone through and the form of the procedures, not the substance. Does that represent a breach or potential breach of ECHR?
Yes.
If everything else is by the by, and no other pals are involved, should the party who has been under surveillance be told—once they have been cleared—that they have been under surveillance?
If it were me, I would like to know, but I do not know if that would be possible, operationally.
In terms of ECHR, do you think that that person should be told that they had been under surveillance, if all other matters had been resolved?
I do not think that that is absolutely necessary. If there has been a good reason and a legal framework for the surveillance, I am not sure that the individual is entitled to know that it ever happened.
So we are back to "how would they ever know" and "how could they ever challenge it" and "was it for a good reason"? They will never know whether it was for a good reason.
It is a matter of common sense: such consideration would be necessary.
I just wanted you to put that on record—thank you.
There are other aspects of the bill for which prior consultation would be useful. There are various provisions under which Scottish ministers are permitted to make orders under the bill, but there is no provision for consultation on draft orders. A requirement for such orders to be consulted upon would also be a useful addition. Notwithstanding the general spirit of things today, a legal obligation to consult could be helpful.
You have triggered it again, Mr Clancy—I asked a question about one section. I cannot remember which, but it does not matter as it is repeated in section 4(3)(a), which reads:
It is a mirror image of the UK legislation, which is drawn in far wider terms—it includes HM Customs and Excise and various other functions. Sub-subsections (a), (b), (c) and (d) all appear in the UK legislation.
But do we need subsection 3(d)?
It is difficult to say whether it is needed in a substantial way. Knowing, however, that ministers always like the comfort of a catchall provision, I am sure that they would agree with the need for it. There may be things that fall outwith sub-subsections (a), (b) and (c) that we have not had time to figure out. If you want, I will give some thought to section 4(3)(d) and try to come up with some examples for you.
That would be helpful.
Your opening remarks indicated that you have a number of concerns about the draft Scottish bill. What is your biggest concern?
One concern is about the operation of section 6, which relates to intrusive surveillance. Intrusive surveillance relates only to preventing and detecting serious crime. The definition of serious crime is lifted straight from the UK legislation, and is dealt with under section 27 subsections (6) and (7) of the Scottish bill. Subsection (6) reads
We are already examining that point. In your view, does section 27(7)(b) extend the existing police codes, or does it reflect the powers that are already there?
I must express a measure of ignorance: I do not know the current police guidelines on that matter. I have serious concerns about what is meant by "serious crime". Anyone can understand what subsection (7)(a) means, but one has some difficulty understanding what sub-subsection (b) means. There are also ECHR implications—I notice Professor Gane nodding his head in the public gallery. There are implications under article 8 of ECHR on the operation of that definition.
I want to take you back to something you skimmed over earlier about situations that are not covered. I think someone said something about being worried about private situations that are not covered. Can you say more about that?
People are under the impression that there is no privacy right in the UK, because, so far, such a right has not been established in case law, and the convention has not been drawn upon in order to form that case law. However, the right of privacy exists under the convention and if that right is invaded, there has been a violation. We will find that privacy law will come, one way or another, whether from the courts or from legislation. When that law comes, there will be a need for some analogue of the regulation of investigative powers legislation in order to cope with private investigations into fraud or whatever. I hope that that issue is considered sooner rather than later, because people who conduct private sector investigations will not know quite where they are for a while. They will not have the comfort of knowing about the code and, at the same time, they will not know where the case law is heading after 2 October. They will have nothing else to go on.
Are you suggesting that privacy law should be included in the draft bill, or are you drawing our attention to that issue for the future?
Getting the bill through is probably the more urgent task, but privacy law should be in place in the fairly near future, as there will be difficulties after 2 October.
You said that certain occupations should never be used as intelligence sources, such as the legal and medical professions. Why is that?
I should be clear that I do not mean that there are no circumstances in which that would be appropriate for the legal profession—it depends on the capacity in which the lawyer is operating. For example, is he giving advice in the context of privileges? It would probably almost never be appropriate for an advocate. For a solicitor, it would depend whether he was dealing with a person as an adviser on the law—on rights, duties, potential claims and so on—or whether he is carrying through a transaction, such as buying and selling land or whatever. That is a different situation, and I do not think that it would be inappropriate in that circumstance.
Let us take as an example a serial rapist—someone who had committed a serious crime—who is the subject of a covert operation. Is it your position that it would never be appropriate for a legal or medical person to assist in hinting whether or not the right suspect had been identified?
That implications of such situations should be investigated further, as mapping out such examples is never easy. However, there is cause for concern.
For me, the draft bill is strange, because it regulates surveillance operations, which the police have carried out for years. We have had evidence from senior police officers and from Professor Alan Miller about police surveillance. I mean no disrespect to any of those witnesses, but people have their own agendas, so if I had expected a conflict, it would probably have been between those bodies of evidence. However, the opposite is the case: both tell us that, by and large, it is quite a good bill and strikes the balance quite well. Would the Law Society—or those representatives of it who are present—agree with that view?
By and large.
By and large will probably do.
Jim McLean had an interesting tone when he said that, which suggests that perhaps his response was not quite so clear cut.
We were not overwhelmed by his enthusiasm.
The draft bill has fuzzy edges, but it is better than having nothing. It is an improvement, and a lot of thought has gone into it.
I do not want to have a private argument with Murray Macara, but I did not quite understand the problem with the definitions in section 27(7).
I am conscious of the example of
Such as Greenpeace or Friends of the Earth?
Exactly—or people who have an interest in animal liberation.
We may have to go back to the drafters on this interesting point, but I think that, in the draft bill, serious crimes are crimes of the nature described in section 27, and that therefore section 27(7)(b) refers to criminal conduct. Perhaps it is badly written.
It may be simply a problem of draftsmanship and nothing else. We understand that that section refers to crime, and the police would have the same understanding. It may be just a petty comment, but it leaped out when we read the draft bill.
Perhaps the word "crime" should be inserted into section 27(7)(b)—
So that the intention is clear.
That would be simple.
There are also questions of certainty—what is "substantial financial gain"? One person's "substantial financial gain" may not be another's. What is a "large number of people"? Do all the people in this room make up a "large number"? In comparison with Gordon Jackson's analogy of a football park, they might not.
I want to take Mr McLean back to some of his initial comments about ECHR. He expressed a concern that our discussions about the draft bill and about human rights tend to relate to public authorities, the Parliament, Government agencies or whatever. We are in danger of forgetting that ECHR also applies to a range of other activities, such as how the state protects one's right to privacy, for example. Out of interest, do you think that the extensive use of CCTV could be challenged?
Some people take that view, but I do not, because it seems to me that there is no question of privacy when CCTV is used in a public place. When someone believes that they are in a private situation, but CCTV is being used—
Regardless of who is using the CCTV?
Yes, but I do not know whether everyone would share my view.
In your view, as soon as someone walks out their front door, anyone is entitled to take pictures of them, follow them or take notice of them, regardless—
I do not have a problem with that happening in a public place, although I understand that it might involve a covert element of targeting someone. However, the general surveillance that might happen in some streets does not, to my mind, raise a civil liberties problem, although I am aware that other people see that situation differently.
In your note, you refer to the interception commissioner, which is a very grand title. I presume that that refers to the UK bill.
Yes.
Is the surveillance commissioner the equivalent position in the Scottish bill? I may have overlooked the relevant sections, as I have had only a quick look at the draft bill.
I do not think that the interception commissioner applies to the Scottish bill.
There are different commissioners to be appointed under the UK bill—I think that the surveillance commissioner is a separate and distinct matter.
So, will there be no interception commissioner in Scotland?
It serves a different purpose.
The interception commissioner will deal with the interception of telecommunications and is found in part 1 of the UK bill.
It has no bearing on the Scottish bill.
No, it has no bearing on the Scottish bill. It is in the UK bill.
I have one final question. I want to get your view on record on section 11 of the draft bill on "Quashing of authorisations etc". Subsection (1) states that a surveillance commissioner "may" quash an authorisation, if it turns out that there were no reasonable grounds for it, and subsection (4) says that he "may" order the destruction of records. Do you think that the word "may" should become "must" in those two provisions, unless there is a reason against that?
When we first read section 11, we thought that in every instance where the word "may" appeared, the word "shall" should be substituted. The more we thought about it, the more we were concerned about the fact that the destruction of records is a once-and-for-all event, and it might be that on subsequent inquiry the records should be available. Although, at first sight, it would appear desirable that records should be destroyed in certain circumstances where the surveillance commissioner so authorises, in other circumstances it might be better that records are saved.
We were concerned that if the word "must" were substituted for "may", it might have a chilling effect on the readiness of the surveillance commissioner to find that surveillance had been unjustified.
You think that the surveillance commissioner might decide that fewer cases were unjustified.
Knowing the irreversible consequences of such a finding might make it difficult for him.
What is your view on the retention of records, regardless of whether authorisation was unjustified? Presumably, we would be saying that records of the three-week surveillance of Michael Clancy, which exposed no wrongdoing whatever, should nevertheless be retained.
It is because I lead such a boring life.
The position is not perfect, but I would not expect it to be.
Bad luck, Michael.