Subordinate Legislation
Advice and Assistance<br />(Assistance by Way of Representation) (Scotland) Amendment Regulations 2003 (Draft)
I welcome the Deputy Minister for Justice, Hugh Henry, to the committee. I ask the minister to speak to and move the motion on the draft Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment Regulations 2003.
It is an unusual experience for me to be allowed out without Executive officials beside me. I can fly solo and do what I want this morning—I have a degree of freedom. The draft Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment Regulations 2003 will make ABWOR available for certain proceedings in the youth courts. It may be useful if I give a brief explanation of the instrument that we are considering.
The regulations will make ABWOR available—subject only to the financial eligibility test—to accused persons who are not in custody for proceedings in the youth courts, and for appearances by the accused in the youth courts after they have been found guilty, but have not been granted summary criminal legal aid. Solicitors will provide ABWOR directly after carrying out a simple and quick financial eligibility test and ignoring the other statutory tests that normally apply to ABWOR for summary criminal proceedings.
The changes that we propose simply put into effect the recommendations of the youth court feasibility project group. Separate negative instruments have been lodged recently to implement other recommended changes to the legal aid regulations. The instrument is, therefore, part of a legal aid package that will ensure legal representation for most appearances in the youth courts.
I move,
That the Justice 1 Committee, in consideration of the draft Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment Regulations 2003, recommends that the regulations be approved.
Do members have any questions? I remind members that this is a debate on the regulations, although the minister will allow us to ask for clarification of any points that arise.
What is the position before the passing of the draft regulations? Do young people who appear in the youth courts not necessarily receive advice by way of representation?
Because of the difficulty of introducing the regulations—due largely to the parliamentary elections and the setting up of committees—we took certain steps to ensure that assistance was available. The draft regulations just confirm the procedure. We gave ministerial direction to that effect.
So, the draft regulations just formalise the situation.
Yes. They confirm formally what we have already done and give it the proper administrative and legal standing.
You said something about the procedure's departure from the normal statutory test of financial eligibility. Can you tell us any more about that?
We are making legal aid available to more people who come before the youth courts. Financial eligibility is not the only issue; there are certain other hoops that people have to go through before they qualify for legal aid. We have dispensed with those hoops for the purposes of the youth courts. The financial eligibility test will still apply, but the other tests will not.
Motion agreed to.
That the Justice 1 Committee, in consideration of the draft Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment Regulations 2003, recommends that the regulations be approved.
Scotland Act 1998<br />(Transfer of Functions to the Scottish Ministers etc)<br />(No 2) Order 2003 (Draft)
Members have before them a note on the instrument. I ask the minister to speak to and move motion S2M-261.
The transfer of functions that is covered by the order will enable the Scottish Executive to authorise incoming or outgoing requests for mutual legal assistance in interception matters where the requests relate to the prevention or detection of serious crime in or as regards Scotland. The functions are an extension of the powers that are currently exercised by ministers.
Before I go into the detail of the order, it might be helpful to outline the context. The Scotland Act 1998 recognised that, in some cases, it would be appropriate for the Scottish Executive to be able to exercise executive powers in areas where primary legislation continues to be a matter for Westminster. The concept is commonly known as executive devolution. Section 63 of the Scotland Act 1998 allows functions in reserved areas to be transferred to the Scottish ministers.
Agreement to propose the orders under the Scotland Act 1998 is not about degradation of the boundaries of the devolution settlement but is part of sensible evolving management. The key criterion is whether better government would result from the transfer of functions arising from the order. I argue that the order is about sensible use of the act's provisions. It is an example of the Executive and the UK Government continuing to make devolution work and co-operating where we can.
The committee might find it useful if I go into a little bit of detail on the relevant sections of the Scotland Act 1998, which are sections 30(3) and 63.
Section 63 confers a power on Her Majesty to provide, by order in council, for any statutory or non-statutory function of a UK minister of the Crown, in so far as such functions are exercisable in or as regards Scotland, to become exercisable by the Scottish ministers, either instead of or concurrently with a UK minister of the Crown. In this instance, the Scottish ministers would exercise the functions instead of the ministers of the Crown.
Article 2 of the order, together with schedule 1, sets out the extent to which the functions concerned are to be regarded as affecting Scotland for the purposes of the order. That procedure is provided for in section 30(3) of the Scotland Act 1998 and is commonly known as a paving provision. Members will have seen the Executive note that sets out in detail the policy objectives, the legislative effect and the content of the order that we are considering.
The order executively devolves to the Scottish ministers certain functions relating to international mutual assistance under section 5 of the Regulation of Investigatory Powers Act 2000. It will enable the Scottish ministers to authorise interception warrants in response to requests for mutual assistance in interception matters relating to serious crime in Scotland. Such warrants would be issued in response to requests from abroad for interception of targets located in Scotland, or to requests from Scottish police or HM Customs and Excise that interception be conducted abroad in furtherance of an investigation that is being conducted in Scotland.
For example, a Scottish police force or the Scottish Drug Enforcement Agency might be targeting a major drug trafficker who operates wholly or partly in another European Union member state. Interception of that person's communications abroad could be integral to the success of the domestic operation to detect or prevent serious crime in or as regards Scotland. Alternatively, Dutch authorities might wish to intercept the communications of a major criminal whose illegal activities bring him into Scotland. In recent years, of course, there has been increasing internationalisation of criminal activity, in particular in relation to drugs; increased air links make it easier for criminals to move quickly between various jurisdictions. In either scenario, the Scottish ministers would authorise interception only if the request met the strict criteria that are laid down in the Regulation of Investigatory Powers Act 2000.
The proposed transfer of functions is in line with current practice in two ways. First, as a result of the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc) (No 2) Order 2000 (SI 2000/3253), the Scottish ministers may sign interception warrants that relate to serious crime in Scotland. Secondly, the Scottish Executive, mainly through the Crown Office, deals with all other requests for mutual assistance in criminal matters as they relate to Scotland.
In practical terms, article 3 of and schedule 2 to the draft order will transfer functions in relation to the issue of interception warrants pursuant to section 5(1)(b) and (c) of the 2000 act. Those functions will be exercisable in or as regards Scotland for the purposes of preventing or detecting serious crime, or, in equivalent circumstances, for the purpose of giving effect to the provisions of any international mutual assistance agreement.
Under section 5(1)(b) of the 2000 act, the Scottish ministers will be able to issue a warrant that authorises Scottish police or HM Customs and Excise to request that interception be conducted abroad in furtherance of an investigation that is being conducted in Scotland. Under section 5(1)(c), the Scottish ministers will be able, in response to requests from abroad, to issue warrants that authorise interception of targets that are located in Scotland.
Warrants under section 5(1)(b) and (c) can be issued only in accordance with an international mutual assistance agreement that is designated under the 2000 act. The first agreement to be so designated is the European Union convention on mutual legal assistance in criminal matters. The Executive note that is available to members summarises the convention, only part of which deals with interception matters, which are the subject of the order before the committee. In simple terms, title III of the convention provides for the first time multilateral arrangements that allow a competent authority in one member state to ask a competent authority in another member state to intercept communications in that member state. In the absence of specific international agreements, such co-operation between member states has been unsystematic and largely unworkable. The provisions of the convention are designed to remedy that situation. As members may have seen from the Executive note, the Crime (International Co-operation) Bill that is currently being considered by the Westminster Parliament will implement the provisions of the convention that are not already in legislation.
The order also transfers to the Scottish ministers supplementary functions under sections 9, 10 and 15 of the Regulation of Investigatory Powers Act 2000. Those concern the outgoing administration of the functions that are transferred under section 5 of the 2000 act and include the duration, cancellation and renewal of warrants, the modification of warrants and general safeguards on restrictions on the use of intercepted material.
To enable the Scottish ministers to deal with requests for mutual assistance in interception matters as they relate to Scotland is pragmatic and entirely consistent with existing practice and the spirit of the EU mutual legal assistance convention. Moreover, the transfer of those functions to the Scottish Executive will ensure that the Scottish ministers have oversight of and responsibility for authorising this extremely important form of intrusive surveillance when it is sought in a devolved context. Members should be in no doubt that the Scottish ministers do not take their role in interception lightly. Interception warrants are issued by the Scottish ministers only where their use is absolutely justified and only in cases that fall squarely within the definition of serious crime. That has been acknowledged by the interception of communications commissioner, who provides independent statutory oversight of this activity. I commend the order to the committee.
I move,
That the Justice 1 Committee, in consideration of the draft Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) (No.2) Order 2003, recommends that the order be approved.
It is open to the committee to debate the order and to seek clarification of any points.
The order seems to be a wholly sensible transfer of functions. However, are there any financial consequences in transferring the functions?
There is none of which we are aware—we do not believe that there would be any additional financial consequences.
I agree with Bill Butler that the order represents a very sensible transfer of functions to the Scottish ministers. Within the Justice 1 Committee remit, we have taken a great interest in the regulation of investigatory powers because we also scrutinised the act. Because we see so many such regulations, which all seem to add to the good functioning of the act, we want to be sure that Parliament is kept up to date and that it has as much information as possible. If one has not been involved with the regulations, the subject can be confusing.
Will you give us information about, for example, the duration of a warrant that a Scottish minister will grant? Would a minister determine that according to the evidence that was received from the relevant authority?
The initial warrant would be for three months. Beyond that, although the matter could be renewed, it would be a matter of deciding on individual cases after careful scrutiny. Ministers would not sign a warrant lightly; there are not many such warrants and all are considered carefully.
Which minister would sign such a warrant? Would it be you or the Minister for Justice?
The Minister for Justice would sign such a warrant in the first instance. Technically, the power to sign the warrants applies to all the Scottish ministers; in the absence of the Minister for Justice, the power would fall either to the First Minister or to the Deputy First Minister. The warrants are significant enough to justify such tight operation.
Do you have any idea about what standard of information would be required? For example, if the Italian authorities wanted the Scottish ministers to sign a warrant for phone tapping, would that require a certain standard of information?
We would require a standard of information that satisfied our procedures, regulations and legislation. Different authorities might work in different ways, but we would have to satisfy ourselves that the standard of information justified signing a warrant. There would have to be domestic authority before we would consider an application.
Have you any idea what would be the likely annual number of interception orders that might occur? Following that, you said in your response to Bill Butler that there would be no financial implications. If it turns out that there is an ever-increasing number of orders on the basis of requests from abroad, surely there will—given the fact that there is some internationalisation of crime, particularly in relation to drugs—be some financial implication for Scottish authorities.
We are not in a position to comment on the likely number of incoming requests—the service is demand-led. If things get to the stage at which thousands of requests are arriving every month, there would be financial implications. However, the warrants are used so rarely that we do not expect a significant burden.
However, we have to balance the advantage that comes with the proposal. The proposal not only gives an advantage to other authorities that ask us to carry out work on their behalf; it provides us with the advantage of being able to follow through investigations of criminality. Also, the order will, arguably, allow us to move more swiftly than would otherwise be the case, especially in dealing with international drug dealers, who launder money and move drugs across boundaries very quickly. It is important that we are able to use whatever means are at our disposal in targeting what is clearly an international trade.
I should also clarify that, although there will be certain financial implications for us which we think will be negligible, foreign agencies would need to pay for any costs that we incurred in complying with their requests.
You may not be able to anticipate the number of up and coming orders, but will you tell us how many orders are currently made each year? Can you expand on how the process would work in practice? Who would carry out the interceptions? I presume that it would be the local police forces in Scotland.
The convener has already asked about what evidence would be required before warrants were signed, but will you explain that in more detail? If the authorities in Italy or Greece or wherever make a request, will we simply accept that? How much evidence will be required before you are satisfied that you should sign the order and allow the interception to go ahead?
On the numbers, the Crown Office and Procurator Fiscal Service deals with non-interception requests for mutual legal assistance. It received 62 incoming requests from EU countries during 2001-02. However, we cannot anticipate future numbers. Some 41 applications were processed for outgoing requests from law enforcement agencies in Scotland, including the Scottish Drug Enforcement Agency.
On who would carry out the request and how that would be done, it would not be appropriate within the context of our discussion to discuss operational issues about who does what and how they do it. It would not be competent of me to go into that.
On how we would satisfy ourselves that the request had been properly processed, the EU convention makes it clear that the requesting member state must always satisfy its domestic law before it makes a request. In practice, that means that requests from the UK would be based on a warrant that was issued by the Secretary of State for Scotland or the Scottish ministers. The warrant would be issued in accordance with the same criteria that apply to applications from UK law enforcement agencies for serious crime warrants against targets in the UK.
Where requests are made under the EU convention, the target of the interception would be protected by the domestic law of both the member state making the request and the member state in which the target was present. For example, if the application came from Italy, Italian law would protect the person but we would also need to satisfy ourselves that the process was working properly, so there would be protection under Scottish law as well. Interception would take place only if the criteria for interception in both states were met. We would apply our own rigorous tests and we would apply them to our standards. That double-lock system of safeguards was endorsed by the House of Lords Select Committee on European Communities in its report on the draft convention in 1998.
Thank you. That information has been very useful.
Will the minister go into the criteria for issuing a warrant and explain how such a warrant would operate within domestic law? He has covered that to an extent, but is there anything else that he could add that would give us a fuller picture of how the system will operate?
The criterion is that any warrant must meet the serious crime threshold tests, which are laid down in the Regulation of Investigatory Powers Act 2000. If the warrant is justified in those terms, it will proceed.
According to section 81(3) of the 2000 act, the tests are:
"that the offence or one of the offences that is or would be constituted by the conduct is an offence for which a person who has attained the age of twenty-one and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of three years or more"
or
"that the conduct involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose".
That will be helpful in ensuring that there is no obvious abuse of the measure in what is quite a delicate issue.
I know that we have wandered a wee bit away from the order, but the discussion has helped members to understand a little better aspects of interception of communications. After all, I am sure that this will not be the last such order that will come before us. Who knows?
Motion agreed to.
That the Justice 1 Committee, in consideration of the draft Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) (No.2) Order 2003, recommends that the order be approved.
The committee is now required to report to Parliament on the instruments. However, as the report will be short, we should perhaps simply summarise what is said in the Official Report. We have nothing else other than that to report.
I thank the minister, Hugh Henry, and his officials for attending this morning.