The next item of business is a statement by the Cabinet Secretary for Justice, Kenny MacAskill, on the Data Retention and Investigatory Powers Act 2014, which is United Kingdom legislation. The cabinet secretary will take questions at the end of his statement; there should therefore be no interventions or interruptions.
16:30
The UK Government’s Data Retention and Investigatory Powers Act received royal assent on 17 July 2014. I acknowledge the huge level of public interest that this piece of Westminster legislation has generated, raising as it did fundamental issues of civil liberties, privacy, security and the role of Government.
It is in every Government’s interest that we combat crime and address security risks, as I am sure every member in the chamber agrees. As sophisticated criminals and terrorists seek to exploit an ever-changing and rapidly developing telecommunications market, so too must our law enforcement and our security and intelligence agencies have the tools that they require to keep pace if they are to keep us safe. They need to be able to track down the drug dealers, head off the would-be terrorists, pursue human traffickers, deal with child exploitation and find missing persons.
Serious organised criminals and terrorists have no respect for borders. The response from law enforcement, security and intelligence agencies and other partners requires a joined-up approach to those threats. Such an approach was demonstrated in response to the events of 30 June 2007, when two terrorists attempted to drive a jeep through the entrance doors of the terminal at Glasgow airport. Another example is the case of Ezeddin Khalid Ahmed Al Khaledi, who was found to have links to the Stockholm bombing that took place in December 2010. Joint working proved essential in bringing that individual to justice.
It is clear that, in tackling these issues, we are all on the same side. However, the situation cannot be used to explain away a need for proper scrutiny of powerful legislative changes. The tools that are needed to protect us must not be left unguarded by Parliaments or used in an unfettered way.
The provisions in the 2014 act are reserved, but they extend to Scotland and have implications for justice in Scotland. The subject matter relates to powers that enable law enforcement agencies in Scotland to prevent and detect crime and prevent acts of terrorism.
Communications data—the who, when, where and how of a communication, rather than its content—is an essential element of Police Scotland’s capability to respond to a wide range of operational issues. It can be used evidentially by the Crown Office and Procurator Fiscal Service, and it can provide evidence that can be considered by the courts.
There was, in Scotland, always going to be a significant level of interest in these matters, which is why we are discussing the issue today. It is regrettable, to say the least, that the Scottish Government was not given the opportunity that it should have been afforded to properly consider and express views on such a significant piece of legislation.
In May 2010, the Prime Minister, David Cameron, announced that he wanted an agenda of respect. He said:
“This agenda is about parliaments working together, of governing with respect ... because I believe Scotland deserves that respect and because I want to try and win Scotland’s respect as the prime minister of the United Kingdom”.
It appears that that level of respect was not afforded to the Scottish Government on this occasion.
A joint announcement on the intention to legislate was made by the Prime Minister and Deputy Prime Minister on the morning of Thursday 10 July. It was followed by a ministerial statement from the Home Secretary, Theresa May, later that same morning.
I received a copy of the draft bill by email that day. It was provided in advance of a hastily arranged telephone conversation that I was to have with the Minister for Security and Immigration, James Brokenshire. That ignores the proper processes that are expected from a Westminster Government when it is passing legislation that extends to Scotland.
It was not only the Scottish Government that was denied the opportunity to have its say. Elected representatives in the UK Parliament were denied the time and opportunities that the bill merited to consider and scrutinise its provisions.
As members will no doubt be aware, the Data Retention and Investigatory Powers Bill was subject to Westminster’s emergency procedures. The bill had its first reading in the House of Commons on Monday 14 July and achieved royal assent on Thursday 17 July.
The reasons for that fast-track approach were provided in the Home Secretary’s parliamentary statement on 10 July. A judgment by the European Court of Justice called into question the legal basis on which the UK Government required communications service providers in the UK to retain communications data. The second reason was an “increasingly pressing need” to put beyond doubt the application of the Regulation of Investigatory Powers Act 2000 regarding the obligation on communications service providers to comply with legal obligations, irrespective of where those businesses are based.
There was a period of some three months between the European Court of Justice’s judgment and the announcement of measures to address it. During the subsequent questions on the Home Secretary’s statement on 10 July, the Conservative member of Parliament David Davis said:
“The Home Secretary has justified rushing this Bill through the House on the basis of an emergency. However, the case was put to the ECJ some time ago, and it took some time to reach its conclusion on 8 April, so if there is an emergency, it was a predictable one on 8 April.”
I suggest that, in the three months between 8 April and 10 July, there was ample opportunity for the respect that David Cameron described so fulsomely in 2010 to have been paid to the Scottish Government and Parliament.
The Labour MP Tom Watson also criticised the process. He said:
“I have no doubt that the Home Secretary will get her Bill through next week, but the price will be a perception that it is the result of a last-minute deal between elites with little scrutiny by Parliament or civic society”.—[Official Report, House of Commons, 10 July 2014; Vol 584, c 466, 469.]
The Scottish Government is supportive of Police Scotland having access to the information that it requires in order to keep communities safe, but I believe that, where the power of the state impinges on the liberty of its citizens, it is imperative that elected representatives always have an opportunity to debate the issues.
We said in “Scotland’s Future: Your Guide to an Independent Scotland” that, in an independent Scotland, legislation will set out clear arrangements for investigatory powers and that it will build on, and update where necessary, the Regulation of Investigatory Powers Act 2000 and the Regulation of Investigatory Powers (Scotland) Act 2000. Planned legislation will ensure that law enforcement agencies have the powers that they need to do their job and keep Scotland safe, and they will also clarify the limit of those powers and the extent of the controls over them. Any new powers will, of course, be fully considered and debated in the Parliament.
When it comes to combating international problems such as organised crime and terrorism, we must all pull together. The ability of our law enforcement partners to access and use the full range of investigatory powers is a critical part of our approach to tackling those problems and issues.
I find the lack of engagement from the UK Government in this instance regrettable. There was ample time for views to have been exchanged and there was sufficient opportunity for the respect that David Cameron spoke about in 2010 to have been paid to each of us sitting here today and to the people of Scotland who elected us to represent them.
Thank you, cabinet secretary.
I say to members that we need to finish questions to the cabinet secretary at 5 o’clock.
I would have like to have thanked the cabinet secretary for early sight of his statement but, because I received it only 10 minutes before I had to sprint to the chamber, I am unable to do so.
The justice system is a balance between individual freedoms and restrictions on those freedoms to ensure public safety and to preserve the human rights of other individuals. Undoubtedly, the UK Government did not handle the consequences of last April’s European Court of Justice’s ruling as well as it ought to have done. However, it is not the only Government to have encountered issues when trying to rush through emergency legislation, as I am sure that the cabinet secretary will recall.
Does the cabinet secretary accept that the legislation passed in July by the UK Parliament contains greater safeguards and controls than the original act, including cutting the number of agencies that can access retained data and enabling the UK information commissioner to audit the integrity and the deletion of retained data? Does he accept that, in this age of social media and electronic communication, information held by internet companies and phone providers can be vital to the investigation and detection not only of terrorist activities but of atrocities such as child sexual abuse and paedophile rings, as evidenced only yesterday by the arrest of a convicted paedophile in Texas on the basis of material supplied by Google?
The cabinet secretary’s Westminster colleagues voted against the legislation. Is it therefore the case that a Scottish National Party Government in an independent Scotland would not permit the tool of data retention to be used? If that were the case, what would it do to protect public safety in this age of electronic communication and to support the human rights of the victims of online abuse?
The Scottish Government accepts that covert work is required in every jurisdiction, north and south of the border, to keep us safe and secure. I mentioned that in my statement. The same points were echoed by Elaine Murray.
Of course we require to address those who would flood drugs into our community, traffic people or perpetrate atrocities that we have seen carried out elsewhere and that were sought to be carried out here. Therefore, we accept fully that there is a basis and justification for the work to be carried out. However, there are two points that we must make.
First, the process here was not followed. A respect agenda is required to be met and that applies to this Government, to this Parliament and to the other agencies in Scotland. Although they were sighted in some ways, they were not given the opportunity to participate and contribute to the proper scrutiny of parliamentary debate. There is a principle in that regard. As I say, I have accepted that the legislation is required; equally, I accept that the matter is reserved. We must ensure that we get the balance right—I recognise that.
I met the information commissioner—I pay tribute to him and his predecessor, and I welcome their work. In some regards, I can criticise the process followed. On some of the principles of the act, I side with my Westminster colleagues. I also side with David Davis and Tom Watson. We do not know what some of it will mean because the legislation has been rushed through. We must never know some of the information because it would compromise security and the safety of investigation and perhaps officers or individuals in the field. However, we do not and did not have an opportunity for the required proper scrutiny. I contrast the information being sought by members here on my statement with regard to some of the points that they made on the legislation.
I thank the cabinet secretary for the albeit limited advance sight of the statement.
Today of all days, I am sure that the cabinet secretary will appreciate and agree that, in an ideal world, all legislation and indeed ministerial statements would be introduced at the appropriate time and as soon as possible. However, as Governments of all political persuasions know that is not always possible. The Cadder emergency legislation in the Scottish Parliament is a case in point.
The issue before us is not necessarily the timeframe in which the Data Retention and Investigatory Powers Act 2014 was introduced; rather, the issue relates to the content. This emergency legislation was introduced to clarify the legislative framework for certain important investigatory powers to ensure that the UK law enforcement and intelligence agencies can maintain their ability to access telecommunications data. Let us be quite clear: the police need that data to investigate criminal activity and to protect the public.
Will the cabinet secretary confirm that the legislation was necessary and that he is supportive in principle of the legislation to ensure that that crucial data, which is a powerful tool to those investigating horrific crimes such as child exploitation and terrorism, can be accessed and is not lost, which might have been the case had the legislation not been passed? Does he also agree that the act should cover anyone providing a communication service to customers in the UK, regardless where that service is based?
I think that we all agree that some data must be accessed; it is a question of proportionality and ensuring that there are sufficient checks, balances and safeguards.
The timing issue was raised not by me but by David Davis—I refer the member to the quotation in my statement. David Davis is not a member of the Scottish National Party group at Westminster but a former challenger for the leadership of the Conservative Party. To be fair to David Davis, he accepts that some action is necessary. His point was that the case went to the ECJ some time ago and reached its conclusion on 8 April. He made it clear that, if there was an emergency, it was an emergency that was predictable on 8 April—but the legislation that was rushed through Parliament was announced only on 10 July.
That takes me back to process. Everyone accepts the principle—the issue is where we draw the line—but the process seems to me to have failed, certainly in the context of the respect agenda and arguably in relation to the point that not just my parliamentary colleagues but David Davis, Tom Watson and others made, which is that there was insufficient opportunity for proper scrutiny in Westminster. That is where the failure was.
The cabinet secretary has repeatedly referred to the gap between the judgment on 8 April and the announcement on the bill on 10 July. Given that civil servants would not just have put pen to paper on 10 July, I presume that there was a process in the run-up to the announcement. Will the cabinet secretary say when he was first notified? Was it on 10 July, when the bill was already in draft form? What input would he have expected to have to the drafting process?
A draft copy of the bill was emailed to me at 10.20 am on Thursday 10 July, which was the day on which the UK Government announced its plans at Westminster. To be fair to Mr Brokenshire, he sought to contact me before the Home Secretary’s statement, but because I was on the move as a result of ministerial engagements I did not speak to him until later in the day.
I think that it is fair to say that the only intimation that officials who work for me had that something was on the move came very late in the process, just days before, and that the only information that we got was at 10.20 am on the day when the statement was made.
Sometimes I think that this Government revels in being insulted by the UK Government. The justice secretary knew that legislation was coming and that a reaction to the ECJ judgment was required. What efforts did he and his officials make to communicate their views to the UK Government about the changes that were required? He does not have to wait to be asked; surely he can be a bit more forthcoming.
I reiterate to Willie Rennie my answer to Marco Biagi. We did not receive any intimation or communication from the UK Government until 10.20 am on that morning. Officials had been advised that something was brewing, but they were not in the loop—they had been kept out of it.
I have condemned the process, but I accept that there is a principle here. We have to have data retention; the issue is where we set the mark and how we ensure that we have appropriate safeguards. However, let me quote not from the SNP group but from Shami Chakrabarti, the director of Liberty. She said:
“The Government”—
that is, the Liberal-Conservative coalition—
“has shown contempt for the Rule of Law by ignoring the Court of Justice. It has also shown contempt for Parliamentary Sovereignty. Our elected representatives will have just one day to consider a Bill with huge implications for the nation’s privacy—making proper scrutiny, amendment or even debate impossible.”
Ms Chakrabarti, for whom I have the highest respect, clearly felt that the UK Government was disrespectful to the Westminster Parliament. She did not even consider how disrespectful it was to the Scottish Parliament.
It seems that the issue is non-consultation. How often was the Scottish Government consulted about communications data retention and investigatory powers prior to the announcement on the legislation?
We were not consulted. The only discussion that I had was with James Brokenshire. To his credit, he wanted to have the discussion just before the Home Secretary went into the chamber, but as a result of commitments for both of us the discussion did not happen until she had made her statement. I found that highly regrettable, and I made that clear to him. I also made it clear that although I accepted the principle of data retention, clear questions that had been raised by David Davis, Tom Watson, my own parliamentary colleagues and organisations such as Liberty still had to be answered.
As I pointed out in my statement, we are all on the same side with regard to keeping our communities safe, tackling trafficking and protecting communities here and elsewhere from terrorism, and I find the UK Government’s failure to take not only people here but its own colleagues south of the border into the loop not only disrespectful but, at times, harmful.
I identify with Tom Watson’s comments and I appreciate that the cabinet secretary feels bruised by the way in which the process has been conducted. Nevertheless, I am pleased that we agree on the interim solution that has been reached at a UK level, and I hope that in a moment of self-awareness the cabinet secretary will think about the circumstances with regard to his approach to the arming of police, which we have just discussed, and the year of policy development that we have lost in that respect.
Has the cabinet secretary worked out how much of the £2.5 billion that the Government has identified for spending on defence will be ring fenced to deal with the current challenges of cybercrime and digital communications?
No. The issue of cybercrime is being reviewed by Police Scotland, with engagement with police services south of the border, Europe-wide and internationally. Cybercrime is a growing concern but, as with all aspects of crime, the people who are best placed to deal with it and to assess the risks and the actions that require to be taken are the police and the chief constable. Of course, given the nature of those who are involved in such crime, there will also be information from the security services, but I believe that that is an operational matter. Nevertheless, the appropriate safeguards, checks and balances need to be in place, and there should be appropriate discussion and debate about that. That discussion and debate did not take place here.
With regard to the respect agenda that the cabinet secretary mentioned in his statement, does he recall that David Cameron also said:
“This agenda is about parliaments working together, of governing with respect ... because I believe Scotland deserves that respect”?
Does the cabinet secretary agree that by proceeding with the DRIP legislation without even the most rudimentary consultation with this Parliament the UK Government has shown its true colours in its disregard for the very institution of the Scottish Parliament?
If that was not bad enough, does the cabinet secretary also agree with the veteran Labour MP, David Winnick, who said:
“I consider this to be an outright abuse of parliamentary procedure”—[Official Report, House of Commons, 15 July 2014; Vol 584, c 689.]
or with Labour MP Tom Watson, who called it an insult and “democratic banditry”?
I share those views about the respect agenda not being adhered to; it is, as I have said, a matter of concern. Indeed, I intimated to James Brokenshire that process had not been followed.
Such concerns have been expressed because, as members on all sides of the chamber have pointed out, we are all on the same side with regard to tackling terrorism and protecting our communities from those who would harm them. Mr Pearson suggested that I might feel bruised; I do not take it personally—these things happen in the rough-and-tumble of politics—but it shows disrespect to the Government and the Parliament of Scotland. In previous incidents such as the incident and the challenges that we faced at Glasgow airport, security services co-operated with the police in Scotland. Moreover, the Lord Advocate, who at the time was Dame Elish Angiolini, took charge but co-operated with law enforcement south of the border. We did so because we knew not only that an atrocity had been perpetrated here but that atrocities had been and were being planned south of the border. We co-operated with each other and shared our resources, skills and everything else to keep our communities safe because, irrespective of where it is perpetrated, a crime against one is a crime against all.
As I have said, what happened was disrespectful to the Government and the Parliament. However, the greatest disrespect has been shown to those who serve to make our communities safe and who work with colleagues in other agencies and in other jurisdictions.
I have three members who still wish to ask a question. Given that we finish at 5 o’clock, I can be slightly more generous than usual.
As I understand it, the SNP’s position in the independence white paper is that
“some of the work undertaken by security and intelligence agencies means, by necessity, interference with the privacy of specific individuals.”
In his statement, the cabinet secretary referred to would-be terrorists, drug dealers, human traffickers and others, and I do not think that anybody would reject the idea that those specific individuals might be targeted in that way. However, is that a clear rejection by the Scottish Government of the approach of the UK, which is the routine mass surveillance of the entire population of the country? Can the cabinet secretary confirm that if, in the future, he has the responsibility for updating the legislation in this area, as he suggests, that legislation will prohibit the routine mass surveillance of the entire population?
I agree. Patrick Harvie shares the view that we all share, which is that those people who would perpetrate evil, whether for terrorist purposes or simply for their own financial or other gain, require to be dealt with sometimes in a covert and subversive way, although we have to ensure that there are appropriate checks and balances.
In the white paper, we have specified that we will have a security service, and it is important that we separate the police service from the security services, which will be held accountable with parliamentary scrutiny as well as commissioners to address the issue. It is all about where we set the bar.
I say to Mr Harvie that I do not think that those are decisions for me. We have laid out what the basis of the system will be; ultimately, this Parliament will have the power to decide how far it wants to go. I would find it incredible if the Scottish Parliament wished to replicate wholesale what we see happening down south. We would want to ensure that we had balance and proportionality to protect our people, to pursue those who would cause us harm and not to interfere with the rights of the ordinary citizen to go about their daily business. That is my personal view, but it will be for this Parliament—with all the scrutiny, safeguards, checks and balances that will be built in—to decide.
My question follows on from those comments by the cabinet secretary. What will be the priorities of an independent Scotland for investigatory powers?
Those priorities will be the information that is available to those who are in charge of the security services and the chief constable. They will be required to consider a threat assessment, as they do, and we will take that on board.
The Government is clear that this is about protecting our people from harm and protecting others, because bombings in Madrid or London would be as reprehensible as a bombing that took place here. It is about protecting us from those who would harm us and who are operating in cyberspace, to which Mr Pearson has alluded, whether they are based in the Philippines, in Nigeria or in our own jurisdiction. It is about ensuring that we do that while taking on the points that have been made relevantly and cogently by Mr Harvie about proportionality, reasonableness and the need to ensure that we have the appropriate scrutiny to protect the ordinary individual while being able to pursue those who would harm us.
Like my Labour colleagues, I share the cabinet secretary’s disappointment at the lack of proper consultation and debate in advance of the introduction of the legislation. However, does he propose any substantive change to the legislation? He does not appear to be doing so.
In his statement, the cabinet secretary said that,
“where the power of the state impinges on the liberty of its citizens, it is imperative that elected representatives must always have an opportunity to debate the issues.”
Why does he believe that that principle should apply to data retention but not to the carrying of firearms, in respect of which Scotland faces a radical change in policy direction?
It is rather bizarre that, given that I have made a statement and answered questions, and given that we have a police committee, a Scottish Police Authority, HMICS, a quarterly review of the standing firearms authority and, indeed, the PIRC, Mr Macintosh still labours the point. The fact is that the criticism by Labour and Conservative members south of the border concerns the lack of discussion and scrutiny.
We have no intention of seeking simply to replicate the position that has been adopted south of the border. I cannot decide how I would vote because, at the moment, the matter is reserved and I therefore have no vote. It is also difficult for me to comment because I have not been privy to the debate or the information—that is part of our complaint about the lack of a respect agenda.
What I can say, though, is that I believe that, after the yes vote on 18 September, we will ensure that our people are protected and that we play our part in protecting the citizens in other jurisdictions. We will do so by ensuring that there is proportionality and that there are appropriate checks, balances and safeguards.
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