Regulation of Investigatory Powers (Scotland) Bill: Stage 3
We now move to stage 3 consideration of the Regulation of Investigatory Powers (Scotland) Bill. I shall begin by making the usual announcement about the procedures that will be followed.
Members will be becoming increasingly familiar with the procedures. First, we shall deal with amendments to the bill and then we shall move on to a debate on the question that the bill be passed. For the first part of the proceedings, members should have copies of the bill—document SP Bill 16A—as amended at stage 2, the marshalled list containing all amendments selected for debate, and the groupings that have been agreed. Where appropriate, amendments will be debated in groups. Each amendment will be disposed of in turn, and an amendment that has been moved may be withdrawn with the agreement of the members present. It is, of course, possible for members not to move amendments should they so wish. The electronic voting system will be used for all divisions. I shall allow an extended voting period of two minutes for the first division that occurs after each debate on a group of amendments.
Section 1—Conduct to which this Act applies
Amendment 25, in the name of Jim Wallace, is designed to provide that surveillance that involves a device or person on residential premises or in a private vehicle, but which is targeted on someone who is outside the premises or vehicle, would be classed as directed, rather than intrusive, surveillance.
The bill recognises that there are degrees of invasion of privacy; in our view, the expectation of privacy would clearly be highest within a person's home or private vehicle. The most important factor in deciding the extent to which an individual's privacy is likely to be invaded is the location of the target, as opposed to where the surveillance devices are located.
Under the bill, surveillance that is targeted on someone within a residential premises or private vehicle is rightly classed as intrusive surveillance. However, an individual's expectation of privacy is clearly far less if they are in a public place. For example, people walking down the street are aware that they can be seen from the windows of houses overlooking that street. For that reason, surveillance targeted on a person who is outside residential premises or outside a private vehicle clearly does not, in our view, justify an authorisation for intrusive surveillance, irrespective of where the surveillance device itself is located.
I move amendment 25.
I would like the minister to clarify whether, if someone moves from a domestic premises out of doors, the type of surveillance would change. I am not clear about the purpose of the amendment—if one was applying for an order for intrusive surveillance, one would also have to apply for an order for directed surveillance. Can the minister enlighten me?
These points are queries. Perhaps the minister could explain what is meant by residential properties. I might be failing to understand, but I think that we could have a situation where an individual was being checked on in a business property.
I would like to know the reasoning behind the amendment. I compared its wording to what was presented to the Justice and Home Affairs Committee. The two paragraphs, (a) and (b), have been reversed, but there does not seem to be a major difference between the wording and effects of the amendments. I do not intend to oppose amendment 25, but I would like the minister to clarify those points.
As no other member wants to speak, I ask the minister to respond to those points.
I will deal with Phil Gallie's point first. The purpose of amendment 25 is to provide that surveillance that involves a device or a person on residential premises or in a private vehicle and that is targeted at someone who is outside the premises or vehicle would be classed as directed rather than intrusive surveillance. The nub of the issue is how we define what constitutes intrusive or directed surveillance. Is it where the surveillance device is located or where the person under surveillance is located? It seems common sense that our starting premise should be the individual's expectation of privacy and what they would think their rights were. If the individual were located within their home, they would have a high expectation of privacy, whereas if they were in a more public space—as I said, degrees of privacy are involved in the invasion of privacy—we feel that what is set out in this amendment would be appropriate.
I accept the minister's definitions. However, an individual who was running a small business might be in a private office, which he would feel was a place where he could expect privacy.
I was coming to that point. As I said, the bill recognises that there are degrees of invasion of privacy. For that reason, we must consider where an individual could expect to have absolute privacy or near absolute privacy and where he would be operating in a public place. My understanding is that, if an individual were in a place of business, they would expect greater privacy than they would in a public place. For that reason, Mr Gallie's concern about the authorisation would be met by what is proposed in the amendment and by what will be covered in the code of guidance.
Euan Robson also made a point, but I am afraid that I cannot recall what it was. May I invite him to repeat it?
If a target is moving between premises, is it necessary to apply for the more onerous intrusive surveillance rather than directed surveillance?
I recalled the point as Euan started to speak. If the intrusive surveillance target is expected to be mobile or is likely to be mobile, it would be prudent for the relevant public authority to have directed surveillance authorisation as well. I think that that covers Euan Robson's concern.
On Phil Gallie's point, business premises per se would not be within the specific definition relating to intrusive surveillance, but it may be possible to deal with that sort of issue in drawing up the code of guidance, when we examine how forces would be expected to operate in more specifically defined circumstances.
Amendment 25 agreed to.
We now come to amendment 1, which is grouped with amendment 2.
In lodging these amendments, I was trying to sum up what the bill is about—it is designed to protect not just the police in the course of their duties, but the public. I am grateful to members of the Justice and Home Affairs Committee, who listened to some of my past experiences.
I have tried to clear up the grey area that will result from the bill: when is a source not a source, and when is the use of a covert human intelligence source actually just the use of a regular contact, who volunteers information to the police or develops a relationship with a detective or a member of an agency?
Many covert human intelligence sources derive benefit from their actions. They are either paid or it is perceived that they get some benefit or special treatment from the agencies, which is used to cultivate them so that they carry out directed surveillance or actions. That is why the amendments refer to direction. I want to clear up what is often a difficult problem on the ground.
Notoriously, the relationship between handlers—the people who deal with the sources—and senior officers is often strained. Handlers are secretive about whom they know or develop as sources and they do not like to share that information with senior officers. In my experience, senior officers have mostly shied away from any legislation on this matter; if there has to be legislation, they would like it to be as woolly as possible. However, handlers would like better and more directed legislation, so that they know when they cross the line between having a friendly relationship with someone or leaning on them and making them work for the agency.
The minister will probably say that the term "cultivation" provides a clue to determining whether a source becomes directed and, in effect, comes into the employ of an agency. However, sources are not cultivated overnight. A handler picks a group of people in an area and tries to develop relationships with them all, sometimes over many years. When those relationships come to fruition, it may be that one in 10 of those people can be called on as a source. That is when the cultivation happens.
This is a very grey area, which my amendments would go a long way towards clearing up, so that we can avoid cases like those that have occurred in the past, both in national security and police forces, when handlers have crossed the line and public safety and privacy have been put at risk. The amended section would provide that, if a person came under the direction of an agency or gained benefit, they would in effect be a covert human intelligence source. However, if the person happened to be a good neighbour who had a good relationship with a detective on a regular basis or another member of that agency on an ad hoc basis, that individual would not be a source and there would be no need for a lot of unhelpful paperwork and approvals to allow contact to be made. I know that senior officers will say that they are sure that handlers can make the right judgment, but time after time we have seen that they cannot make that judgment. That is when the public, as well as the handler, lose out.
The best-known case—it would not be covered by this bill, but it involves the same issue of the handling of sources—was that of Brian Nelson in Northern Ireland, in which the handlers were reticent about checking with their senior officers how far they could push their source. The case ended up with public safety being infringed and several people quite rightly going to jail.
I have spoken to many people about this matter. There is a marked difference between the feelings of people on the ground and those of people up top and in the bureaucracies. I am trying to protect everybody on the ground rather than the senior officers, who are probably not in favour of any regulation of the use of covert intrusive surveillance or sources.
I move amendment 1.
The amendments are very interesting. It is obvious that Ben Wallace has a great deal of experience. I did not think that someone who said that their neighbour was up to something funny would count as a covert human intelligence source. Section 1(7) defines a covert human intelligence source as a person who
"establishes or maintains a personal relationship or other relationship with another person for the covert purpose"
of facilitating the doing of something as defined. The relationship is established or maintained for a specific purpose. This is not about information that is passed willy-nilly. I would like further information on why Ben Wallace does not think that that definition is tight enough.
The problem is that sources are, by their very nature—the fact that they have a relationship with the person, perhaps a workmate rather than a neighbour, on whom they inform—covert. Section 1(7)(b) says that a person is a covert human intelligence source if the person
"covertly uses such a relationship to obtain information or to provide access to any information".
The relationship—being in business with someone or working with them—is being used. My initial amendment, which was changed slightly by the committee clerks, simply used the word "directed", because using a relationship in a directed manner is key to what I mean when I talk about covert intelligence.
The member is making it sound as though obtaining information in such a manner is incidental to the relationship, but the definition relates to relationships that are set up for the purpose of obtaining covert information, so I do not see why we need the amendment.
The member can deal with that point when he winds up.
Like Christine Grahame, I believe that the amendment is interesting and I feel that Ben Wallace's experience in these matters is valuable, as it gives us an insight into the problem. I have no idea what the minister will do with the amendment, but I have a question. I can understand that there are people in the grey area whom we would not necessarily want to fall within the terms of the bill, because that would inhibit the work of the security services. However, I would have thought that, in practice, the security services or the police would still use the kind of people whom Ben Wallace is talking about outside the scope of the bill, without feeling the need to bring them within the terms of the bill. My fear is that, if we include this exception in the bill, the authorities could use it to justify not registering people when they should and could contrive situations in which they would say that they were not directing the person or paying them money. They could use the grey area in reverse, so to speak, and get round the provisions of the bill by using Ben Wallace's exception. I am interested to hear whether the member believes that that could be a genuine danger.
Let the minister in, Mr Wallace, and you can deal with those points when you wind up.
Let me set out our general position and make it clear from the beginning that we intend to resist the amendments.
Law enforcement agencies regularly rely on information volunteered to them by members of the public with no expectation of reward. In our view, it is important that that useful source of information should not be fettered. It is therefore not our intention that those who carry out such activities, which Christine Grahame described, should fall within the definition of a covert human intelligence source.
As section 1(7) of the bill makes clear, covert human intelligence sources are individuals who establish or maintain a relationship with another person for the covert purpose of obtaining, providing access to or disclosing information obtained as a result of that relationship. Furthermore, under section 1(6), references in the bill to the conduct of a covert human intelligence source are references to public authorities inducing, asking or assisting a person to engage in or to obtain information by means of such conduct. Although amendment 1 seeks to clarify that point, our view is that it would not work, as it refers to persons authorised for using covert human intelligence sources. The bill does not authorise people in that way. Instead, it provides that officers of a particular rank—in the case of the police, we propose that that rank should be superintendent—can authorise the use of a covert human source in specified circumstances.
It is also worth drawing the member's attention to the foreword to the code of practice covering the use of covert human intelligence sources, which states that
"members of the public are encouraged to give information or to provide assistance to the police and other authorities
. . . with no expectation of a reward . . . Nothing in the provisions of the Regulation of Investigatory Powers (Scotland) Act 2000, nor in this code of practice affects such activity."
Indeed, it could be argued that it is the duty of citizens to come forward with such information on criminal acts.
We ask Mr Wallace not to press amendments 1 and 2 on the grounds that they are not necessary and that amendment 1 is technically deficient. The bill and the code of practice already provide that the actions referred to in the amendments do not fall within the definition of the use of covert human intelligence sources contained within the bill. Although I understand and have some sympathy with what Ben Wallace is trying to achieve, we feel that the bill contains adequate cover.
I commend Ben Wallace for lodging these amendments. He is certainly well intentioned and to some degree we ignore his advice at our peril. He has been in the front line and knows what is required.
Ben seeks protection for the source, who is carrying out acts of good citizenship. I am concerned that, under certain circumstances, the source could lay themselves open to civil actions somewhere along the line through becoming involved in this process, even though their actions might not come under the description of "covert" offered by the minister. I will listen to Ben's summing-up on that point and we will try to determine the best interests of the good citizen and society as a whole.
Instead of developing a relationship with a source, one can use their geography. For example, if the old lady who lives at number 74 happens to be a good neighbour of someone in number 86 who is known to be a criminal, we do not have to tell the source to develop a relationship with that person for our benefit; we target their situation, so that their information becomes important and directed. We go to number 74 and develop the relationship in that way. As a result, the old lady might not know why we are developing such a relationship. We do not tell the source to look out her front window at her neighbour every day; instead we manipulate the situation by using the source's geography. That point needs clarification.
Gordon Jackson's comments were interesting. In the case of Brian Nelson, where handlers overstepped the mark, a woolly use of the word "direction" was used by the defence during the trial. The handlers said, "We were not directing our informer; he simply happened to tell us what he was doing and that there were bad people in the area, and we were giving him information to help him to get closer to running his sources." They said that they did not tell him to pervert the course of justice or target certain individuals. However, they were found wanting with such a passive defence.
My amendments seek to protect the public as well as the handlers. Intelligence is all about knowing the full picture. Very often the source is the person being manipulated. Sources often do not know what operation they are part of; for example, no one tells them that they are actually informing on their workmate because he is involved in a £2 million fraud. It is the nature of source handling that sources are manipulated as much as anyone else, which sometimes makes the job pretty unpleasant. I am trying to protect the public from such manipulation as well as the handler who sometimes gets it wrong, which is why I will press the amendment to a vote.
The question is, that amendment 1, in the name of Ben Wallace, be agreed to. Are we agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fergusson, Alex (South of Scotland) (Con)
Gallie, Phil (South of Scotland) (Con)
Harding, Mr Keith (Mid Scotland and Fife) (Con)
Johnston, Nick (Mid Scotland and Fife) (Con)
Johnstone, Alex (North-East Scotland) (Con)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
McLetchie, David (Lothians) (Con)
Mundell, David (South of Scotland) (Con)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Wallace, Ben (North-East Scotland) (Con)
Against
Adam, Brian (North-East Scotland) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Campbell, Colin (West of Scotland) (SNP)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Elder, Dorothy-Grace (Glasgow) (SNP)
Ewing, Dr Winnie (Highlands and Islands) (SNP)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Ewing, Mrs Margaret (Moray) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Galbraith, Mr Sam (Strathkelvin and Bearsden) (Lab)
Gibson, Mr Kenneth (Glasgow) (SNP)
Gillon, Karen (Clydesdale) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Grahame, Christine (South of Scotland) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (Edinburgh Pentlands) (Lab)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Jenkins, Ian (Tweeddale, Ettrick and Lauderdale) (LD)
Kerr, Mr Andy (East Kilbride) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lochhead, Richard (North-East Scotland) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
MacDonald, Ms Margo (Lothians) (SNP)
Macintosh, Mr Kenneth (Eastwood) (Lab)
MacKay, Angus (Edinburgh South) (Lab)
MacLean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
Matheson, Michael (Central Scotland) (SNP)
McAllion, Mr John (Dundee East) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McGugan, Irene (North-East Scotland) (SNP)
McLeish, Henry (Central Fife) (Lab)
McLeod, Fiona (West of Scotland) (SNP)
McMahon, Mr Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, Mr John (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Paterson, Mr Gil (Central Scotland) (SNP)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Radcliffe, Nora (Gordon) (LD)
Robison, Shona (North-East Scotland) (SNP)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Scott, Tavish (Shetland) (LD)
Simpson, Dr Richard (Ochil) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North-East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Thomson, Elaine (Aberdeen North) (Lab)
Ullrich, Kay (West of Scotland) (SNP)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 14, Against 86, Abstentions 0.
Amendment 1 disagreed to.
Amendment 2 not moved.
After section 1
We now come to amendment 27, which is grouped with amendments 28, 29, 67, 69, 71, 73 and 74.
These amendments are, unfortunately, rather lengthy, but their purpose is simple: to replace the commissioners who are established under the Police Act 1997 as the mechanism for providing oversight of the use of powers under the bill with an identical system of oversight to be provided by commissioners to be appointed by Scottish ministers.
I make it clear that the Executive is perfectly content with the work done by the Police Act 1997 commissioners. It is important to put on record our thanks to Lords Davidson and Bonomy in particular for their work in relation to operations conducted by the Scottish police forces under the 1997 act.
The amendments are the result of further consideration that the Executive has given to whether it is competent for the Scottish Parliament to confer new functions on a class of bodies known as cross-border public authorities. Those authorities include the surveillance commissioners. Although we believe that it is competent to confer such functions on such bodies, that matter has not been conclusively determined by the courts. We cannot therefore discount the possibility of arguments being raised in the courts on this point. Because of the importance of the functions in question to the regulatory scheme, and because we want to avoid any possibility of arguments being run in the courts on that issue, we think that we should take the opportunity to reconsider the matter at this stage.
We have therefore taken the view that the most prudent step would be to replace the references in the bill to oversight being provided by the surveillance commissioners established by the 1997 act with a system of oversight to be provided by equivalent commissioners to be appointed by Scottish ministers. Our intention is that this should make no difference in practice to the operation of the oversight mechanism. The amendments provide for a chief commissioner, ordinary commissioners, assistant commissioners and for staff to assist the commissioners in their work.
I emphasise the fact that the amendments do not represent any change in policy in the type or level of oversight of the powers in the bill; they represent our determination to ensure that the legislation in this important area is as robust as possible against challenges made in the courts to evidence gathered in accordance with the legislation's provisions.
I move amendment 27.
I take on board the minister's comments, in the sense that the amendments do not make any fundamental changes to the bill, but amendment 27 states that ministers will be responsible for appointing the given number of chief surveillance commissioners or surveillance commissioners. That will not require any form of parliamentary approval. I seek assurance from the minister on the required number of surveillance commissioners and chief surveillance commissioners. I am sure that, from one Government to the next, there may be a difference of opinion on how many such commissioners are needed at any given time.
Amendment 27 requires the removal of a chief surveillance commissioner to be approved by the Scottish Parliament. I welcome that, but I am concerned that subsection (10) of the new section that amendment 27 would insert states that there shall be no appeal mechanism to challenge any decision of a chief surveillance commissioner. I would like the minister to comment on the ECHR implications when someone seeks to challenge the decision of a chief surveillance commissioner, but cannot do so as a result of amendment 27.
I have similar comments to those of Michael Matheson on the numbers of chief surveillance commissioners and surveillance commissioners. I accept, or at least presume, that a major part of the change is a result of the implementation of the Scotland Act 1998.
What difference will there be in the number of surveillance commissioners once the Scottish commissioners are in place? Is there a cost complication? Will additional people also be appointed at deputy level, or do the new provisions simply represent a continuation of the work of those people who have already been appointed and have acted under Scots law in the past?
Will there be any implications for cross-border activities and how will the work of the surveillance commissioners in Scotland fit in with work that is going on south of the border? Will there be any erosion of past practice in that area? How do the conditions and requirements in the bill compare with the conditions of appointment that applied to commissioners previously, apart from the fact that Scottish ministers will now make the appointments?
If the minister could address those points, I would be quite happy.
We are prepared to support this group of amendments, but I want the minister to address similar points to those raised by Michael Matheson and Phil Gallie.
In subsection (7) of the new section introduced by amendment 27, there is no reference to the circumstances of bankruptcy or criminal offence on the part of the surveillance commissioner, nor to a commissioner's removal by the Scottish ministers being reported to the Parliament. I presume that the contents of proposed subsection (6) are implied in proposed subsection (7), but I would like clarification from the minister on that.
Amendment 28 deals with assistant surveillance commissioners. Towards the end of that amendment, subsection (5) of the new section that it proposes states:
"Subsections (3) to (8) of section (Surveillance Commissioners) above apply"—
and I reiterate Michael Matheson's point about ECHR compliance—however, proposed subsection (10) under amendment 27 does not appear to apply to assistant surveillance commissioners. Does that imply that there is some appeal mechanism against their decisions?
I reiterate that we are not attempting to put in place a different, altered structure to the content of the bill: we are not attempting to change it qualitatively. The purpose of the amendments is simply to ensure that we avoid any challenge in the courts to the propriety of the Parliament appointing the commissioners. It is important to make it clear that the Scottish ministers will appoint commissioners here in Scotland, to ensure that we are not open to challenge at a later date.
It would be difficult to give an undertaking for future Administrations, but I see no reason why we would want to reduce the number of commissioners. The numbers have been in place in previous legislation, for previous matters, for some time. In discussion of the bill, we have debated the way in which we want the oversight of scrutiny to take place, and I recognise no argument for changing that.
Several more specific questions were raised, the first of which concerned the ECHR. We believe that there are no ECHR considerations in respect of this matter, as the commissioners will not determine civil rights. The level of oversight that will be involved will be the same and should be sufficient for the purposes of article 8 of the convention. Existing ECHR cases on this law make the position clear, and we do not think that there will be any change in that position.
We cannot say anything further about future appointments—about the number of commissioners or whatever—beyond the undertaking that I have given. Our intention is to replicate the existing number and structure of the commissioners; that is made clear in the detail of the amendments. Under the previous arrangements, costs were met by Scottish ministers, and we do not envisage any additional costs. The costs are already incurred and in place; it will be simply a matter of allotting them to a different structure. We are absolutely clear that there will be no impact on cross-border operations.
I have just received a note with Mr Robson's name on, to remind me to address his question. I confess that I missed Mr Robson's point, as I was thinking about a point that Mr Gallie raised. I am not suggesting that Mr Robson sent the note—I see a look of confusion on his face—as it came from someone else.
Mr Robson asked me about the applicability of proposed subsection (10) of amendment 27 to assistant commissioners. The role of an assistant commissioner will be only to assist a commissioner in his or her functions. It is therefore not necessary to place the same obligation on the assistant commissioners, as they will carry out only the role of assistants.
I think that that addresses most of the points that were raised. I apologise if I have missed any.
I recognise that the bill was rushed through stage 2, but the stage 3 amendments contain a substantial amount of wording. Why did it take so long to lodge the amendments and why did it take so long to recognise their necessity, given that they were not included originally? They constitute a major section.
As I said in my opening speech, although there are a lot of words in the amendments, their substance is simple and pithy. They are designed simply to replace the mechanism whereby commissioners are appointed and to allow Scottish ministers to do what would otherwise be done on a UK basis. A lot of words are needed to describe that change, but the substance of the amendments is fairly straightforward.
The purpose of amendment 27 is to ensure a belt-and-braces approach to the issue. The last thing that we want is the possibility of challenges in the courts, in serious circumstances, simply over the technicality of whether it is appropriate for the Scottish Executive to appoint commissioners. We want to ensure that we are not open to that challenge, so that the mechanism can proceed smoothly and law enforcement will not be hindered in any way.
Amendment 27 agreed to.
Amendments 28 and 29 moved—[Angus MacKay]—and agreed to.
Section 2—Lawful surveillance etc
Amendment 30 concerns an issue that I raised in the Justice and Home Affairs Committee, as the minister and committee members will recall. The minister wrote helpfully to me about the matter on 31 July. The main reason I have lodged the amendment is to put on record the minister's confirmation of what he said in that letter, covering an element of protection for sources against charges of, for example, civil intrusion. I quote from the letter, although I would like the minister to endorse everything he said in it:
"The cancellation of an authorisation for the use of a human source would not mean that the source was acting unlawfully if he was not told."
I remind the minister that there could be circumstances when an authorisation was cancelled but someone working in the field carried on without knowing of that cancellation and so could face the charge of acting unlawfully. This is about protection for someone acting in good faith.
I move amendment 30.
I have some sympathy with Phil Gallie. I have looked at section 16 on cancellations and seek clarification of when exactly an authorisation is cancelled—when the decision is made or when the source is told. I seem to recall that that was to be included in a code of practice but I may be wrong. I cannot see it in the draft codes of practice. Perhaps it would be appropriate to include clarification of exactly when a cancellation is effective.
I have some sympathy with the intentions of Phil Gallie's amendment; I have put that on record already. He is right to say that after we discussed a similar amendment at stage 2 I wrote to him about it.
Amendment 30 seems to depend on the source being told of the cancellation of the authorisation in writing. That will not always be possible and may be dangerous in many circumstances. Human sources may be operating in difficult situations where the arrival of an official letter could seriously endanger their safety—particularly if the letter was misaddressed to someone on the other side of the street, in the kind of circumstances we discussed with Ben Wallace. The cancellation of an authorisation must mean just that. It would not be right for elements of the authorisation to continue after cancellation. For example, if a human source decided to disappear, for whatever reason—as police informants might well decide to do—the protection provided by Mr Gallie's amendment could continue up until the police had managed to locate the informant and give them written notification.
That is not to say that the police will not seek to ensure that an informant is told of the cancellation as soon as possible. The code of practice sets out that as soon as the cancellation has taken place, the police must seek immediately to inform the informant that the authorisation has been revoked.
Phil Gallie mentioned my July letter, and I am happy to confirm that I stand by the specific statements in that letter. I hope that that provides some comfort to him.
To assist Phil Gallie, and in response to the minister, I must say that I have concerns about sending a letter that says, "Thanks very much for working for us. You are now terminated." Source handling is all about face-to-face meetings. It has been known for sources to receive payment for which they sign a receipt. When a source is terminated, especially if that source has been in a dangerous position, some form of relationship is required, not just a telephone call. Usually, that would be a meeting, at which the person would be told, "Thank you very much. Your services are no longer required. Could you sign to confirm that you have received that information?"
The minister should consider introducing in the guidelines a receipt or certificate to be signed so that there is no doubt. I agree with the minister that a letter cannot be sent. Handling is about meetings and, in those meetings, it would not be hard to introduce some form of receipt system.
I acknowledge that the minister's written intimation was carried over from a previous occasion. I started by saying that my objective was to get the minister to put on record that his letter provides the cover that I seek. I believe that the letter does that. I am much comforted by the fact that the Official Report will now record that the letter stands. I therefore seek to withdraw my amendment.
Amendment 30, by agreement, withdrawn.
Amendment 31 is grouped with amendments 33, 35 to 41, 43 to 51, 53, 55, 56, 58, 60, 61, 66, 68 and 72. The minister will move amendment 31 and speak to all the amendments in the group. I remind members that the debate must be concluded one hour and 30 minutes after proceedings began.
The amendments seek to delete the National Criminal Intelligence Service from the list of public authorities that can authorise the use of surveillance or human sources under the bill. The reason behind the amendments is identical to the one that I gave in relation to the surveillance commissioners—whether it is competent for the Parliament to confer new functions on a class of bodies known as cross-border public authorities. Those cross-border public authorities include NCIS. Although, as I said earlier, we believe that it is competent to confer such functions on such bodies, the matter has not been determined conclusively by the courts so there is the risk of challenge to the lawfulness of evidence collected in accordance with the provisions of the bill.
In the light of that, we seek to take the prudent step of removing the NCIS from the bill. I am advised that that will make little difference in practice to the NCIS, because it, in the main, is involved in intelligence assessment and analysis, rather than collection. Where the NCIS might require to conduct an operation that would require authorisation under the bill, it would be able to do so by working in co-operation with the relevant Scottish police force, which would be required to seek authorisation under the bill.
If the area of uncertainty is resolved and we take the view, at some future point, that it would be desirable to add the NCIS to the list of bodies that can authorise directed surveillance or the use of human sources, it would be relatively simple and straightforward to do so by means of an order under section 5(4) of the bill. At present, however, we consider it more prudent to remove the NCIS.
I move amendment 31.
Amendment 31 agreed to.
Section 3—Authorisation of directed surveillance
We move to amendment 10, which is grouped with amendments 11 to 18.
The amendments are entirely consequential to the amendments that were made at stage 2. I am advised that, although there is no material difference in law between "believes" and "is satisfied", the effect of the stage 2 amendments is to upset the wording in other provisions of the bill. The intention of the amendments is to ensure consistency throughout the bill, to avoid any attempt in later interpretation to find a difference in intention where different words are used.
Although the consequential amendments are necessary and unavoidable, because of the amendment that was made at stage 2, I should indicate to members that they will result in some particularly inelegant language. Mr Matheson pressed the point at an earlier stage of the bill, so I am happy to lay responsibility for that at his door. In section 10(3)(a), for example, a commissioner will need to be
"satisfied that there are reasonable grounds for being satisfied that the requirements of section 6(2)(a) and (b) above are satisfied".
That is a not bad illustration of the unforeseen consequences of tinkering with the very careful construction of the bill as put together by the parliamentary draftsmen.
I move amendment 10.
I warmly welcome the amendments. I must respond to the minister's comments by saying that I was in good company. If my memory serves me correctly, Gordon Jackson supported me in committee in saying that "believes" should be replaced by "is satisfied".
I should make it clear to Michael Matheson that I supported him out of a sense of mischief rather than out of principle. If there is inelegant language, that is where it comes from.
I must respond to Gordon Jackson, because what he has just said is not entirely true. All the Labour members of the Justice and Home Affairs Committee supported Michael Matheson eventually as there was a serious point to be made, although the minister disagreed. That goes to show that committees are effective. Given the civil liberties issues that were raised by the bill, we felt that the wording "is satisfied" would be better than "believes" when it came to granting authorisations. The committee was quite united on that.
I feel obliged to say that Conservative members of the committee also supported the amendment in question. I am shocked by Gordon Jackson's levity when dealing with such a serious bill. Conservatives would never think of treating such matters so lightly.
We support the amendments in the minister's name.
Amendment 10 agreed to.
Amendment 3 is grouped with amendment 4. Michael Matheson will move amendment 3 and speak to both amendments.
The minister will be aware of the background to the two amendments, as the issues to which they relate were debated at length in the Justice and Home Affairs Committee. There is concern about the section in the bill that amendments 3 and 4 seek to change. They would remove a catch-all provision that will allow ministers to make authorisations for direct surveillance on a range of issues. In evidence to the Justice and Home Affairs Committee, organisations such as the Association of Chief Police Officers in Scotland were unable to define why that power was required and for what reasons it might be used. When the minister defended his position before the committee, he was somewhat unconvincing in explaining why an all-encompassing provision was required.
The bill as it stands defines the grounds for authorisation of direct surveillance. I do not believe that the general power with which the minister would be provided is either desirable or healthy in a modern democracy. I hope that for that reason the minister will see fit to accept the amendments second time round, to ensure that ministers are not provided with wide-ranging powers that they have so far been unable to justify in debate.
I move amendment 3.
Michael Matheson used the term "catch-all provision", and he was absolutely right to do so. However, I would tend to use the word "flexibility". It is important that there should be a degree of flexibility in the bill.
I joked with Gordon Jackson a moment ago but, in all seriousness, the Regulation of Investigatory Powers (Scotland) Bill is needed to prevent hard-line criminals from abusing society. Circumstances, albeit difficult to define, could arise where urgent attention is needed. In the interests of society and democracy, it is right to give ministers that discretion.
I have not always got the greatest of confidence in the present bunch of ministers. However, they have been elected to a position of trust to look after the interests of society as a whole. On that basis, it seems reasonable to include flexible provision in the bill. Provided that the minister does not accept the amendment, we will support his position.
I hope that the minister will accept the amendment, because on this occasion Michael Matheson is right and Phil Gallie is wrong. I agree that the provision raises a serious issue; it is one of the few matters that gave the committee real concern. The idea that the Executive should have such a catch-all provision did not appeal to members, even though it was made clear that it would be used only by positive resolution of the Parliament.
Phil Gallie's point about the "present bunch" of ministers is a fair approach. In future, there will be other bunches of ministers of various persuasions and this is a long-term provision. The idea that we would give a long-term power to any Executive to use such a catch-all provision was extremely worrying. I would have supported Phil Gallie on the question of flexibility if anyone could have provided one good reason why such flexibility was needed. I mean Angus MacKay no disrespect, and he will probably agree that although he tried to provide such a reason, it was not the most convincing argument that the committee heard. I see that he is raising his hands in acknowledgement.
When the committee sought to find out when the provision would be used, the examples that we were given made us more worried about the provision rather than putting our minds at rest. Eventually, most members concluded that the right course of action was to remove the provision. If, in future, something develops for which we need a further authorisation reason, no doubt the Parliament could act quickly to deal with it. I prefer to take that risk rather than to let the provision stand, because it would be so open to abuse—not by the present bunch, of course—that I do not want it to be included in the bill. I hope that the minister will accept Michael Matheson's amendment.
Like Gordon Jackson, I hope that the minister will at least enlighten us as to why the provision is necessary. It is difficult to understand why a power should be granted without an example of the circumstances in which that power might be exercised. However, there is a fine balance to be struck. The minister said that such orders would be made through an affirmative procedure and that is a significant concession. If the minister could convince us that there are circumstances where the provision in question might be used, I would be prepared to reject the amendment. However, if no one can give any reason why the provision should be included in the bill, it would not be appropriate to grant such a power.
This is the minister's last opportunity to come up with an example. He has had a long time to find such an example. Let us hear it.
I, too, support Michael Matheson on this point. I cannot think of any example where section 3(3)(d) would be appropriate, even given the markedly complicated interfaces between the police and other agencies. I urge the minister to accept the amendment.
Mr Wallace will respond to groups 7, 8, 9 and 17.
I welcome the exchange of views that we have had today, which follows on from an intense debate in committee on an important issue. Giving ministers powers in such an area is not something that the Parliament should do lightly.
After taking into account the range of views that have been expressed across the Parliament and having given further careful consideration to the matter, I can inform the Parliament that the Executive is prepared to agree to the amendments in groups 7, 8, 9 and 17. There are arguments about flexibility, as Mr Gallie mentioned, but there would have been no intention to use the power in the foreseeable future. Removing the power from the bill, therefore, should not cause any immediate difficulty.
It remains the case that it is impossible to predict what the future will bring. As Gordon Jackson said, this is a long-term provision. It may be that through some of the human rights jurisprudence that is emerging in the courts, there will be a need at some point in the future to add to the purposes that are already set out in the bill. We accept, however, that in such circumstances we would be obliged to return to the Parliament with a short bill—primary legislation—to do so. I apologise prospectively to the Justice and Home Affairs Committee for overloading it, should that happen.
Could the minister describe the status quo of the UK legislation?
The UK legislation contains the provision that we are agreeing to eliminate, so there will be divergence between the Scottish and UK legislation. I understand that the Subordinate Legislation Committee reflected on that issue and on section 5(3), which gives ministers powers to add or remove relevant public authorities for the purposes of sections 3 and 4—that is, for the authorisation of directed surveillance or covert human intelligence sources. That power is subject to affirmative resolution, so Parliament would have to approve the resolution before any group could be added.
It is interesting to note that, despite there being the best will in the world when the legislation was drafted, the Home Office has already been advised that the Financial Services Authority should be added to the list of bodies that can carry out surveillance. It is likely, therefore, that the Home Secretary will seek to add to the purposes by means of a power that is equivalent to that which we are debating. We would not seek to do that here because the functions of the FSA are reserved, but it is interesting to note how soon after the Westminster legislation hit the statute book that one overlooked authority has emerged. With regard to that particular power—not the one that is the subject of Mr Matheson's amendments 3 and 4—that flexibility has already had to be activated. However, for the reasons that I have outlined, it is the Executive's intention to agree to Mr Matheson's amendments.
I thank the minister, and congratulate him on showing such humility in accepting the amendments and denying himself such wide-ranging powers. The purpose of the bill is to strike a balance between the need to undertake surveillance and the protection of individuals' civil liberties. By removing section 3(3)(d) we will maintain balance and ensure that the civil liberties of individuals in Scotland are upheld. I welcome particularly the fact that—given that the amendments were lodged by the SNP—our legislation will be altered so that the powers that will be available will be different from those that are available under the Westminster act. On that basis, once the bill is passed I believe that our act will be better than theirs.
Given what has been said, I repeat that we are changing the status quo. I go along with the judgments of the ministers, but remind them that when it came to the serious situation that developed regarding the Ruddle bill, it took time to get that legislation through Parliament. In the kind of circumstances that I have in mind, it might be that that time would not be available to those on the ground who wanted to carry out a particular surveillance exercise.
That said, the Conservatives will not oppose the amendments that have been lodged by Michael Matheson and Christine Grahame.
Amendment 3 agreed to.
Section 4—Authorisation of covert human intelligence sources
Amendment 4 moved—[Michael Matheson]—and agreed to.
We come now to amendment 32, which is on its own.
The amendment, which was submitted to me by the Law Society of Scotland, seeks to protect the source of information. It would ensure that before authorisation is granted, the person who considers the application must be satisfied that arrangements have been put in place to protect the source in the event of cancellation of the authorisation.
It is essential at the time of granting an authorisation that measures are put in place to protect the source not only during the course of the authorisation but on its cancellation and immediately thereafter. The security and welfare of the source should be protected at all times. That is why the amendment has been lodged.
I move amendment 32.
I speak in support of amendment 32. When a source is taken on, not only should the individual be taken on but the risks run by the source should be taken on. The amendment goes a good way towards ensuring that that problem is well thought through before a source is authorised. I urge the minister to agree to the amendment.
I have heard Mr Gallie and Mr Wallace and have considerable sympathy with the sentiments that underlie the amendment. We would all agree that it is important to ensure the security and welfare of a covert human intelligence source. Sources should be protected even after they have ceased operating as such.
We have considered the matter since it was raised at stage 2, but it is considered more appropriate that such provisions should be covered in the code of practice for the use of covert human intelligence sources rather than be included on the face of the bill.
I draw members' attention to sections 3 and 4 of the code, which is available on the Scottish Executive website. The sections contain a number of measures that relate to the security and welfare of covert human intelligence sources. For example, they ensure that sources should have designated handlers and controllers and that
"a risk assessment is carried out to determine the risk to the source of any tasking".
The code goes on to state that
"the ongoing security and welfare of the source after the cancellation of their role should . . . be considered at the outset."
Security of a source is not an afterthought; that must be provided from the outset.
Mr Gallie might like to note that section 3.37 of the code, which relates to the cancellation of authorisations, includes a further stipulation that
"the safety and welfare of the source following cancellation should continue to be assured."
Those points are very much to the fore in our considerations and in the considerations of those who use covert human intelligence sources. The question is not, therefore, being ignored; rather it has been judged that the matter will be better dealt with in the code than it would be by inclusion in the face of the bill.
As Angus MacKay indicated, a similar amendment was debated at stage 2. There is a problem with the amendment, as it refers to
"the person authorising the conduct"
as being the individual with responsibility for reviewing the continuing security and welfare of the source once the initial authorisation has been cancelled. It will sometimes be the case that it is necessary to continue to offer protection and security to a source for many years after their use has ended. It is inevitable that in some situations the person who authorises the source's conduct will have changed jobs or retired during the period between authorisation and cancellation. If the amendment were agreed to, it would be unclear in those circumstances upon whom the duty that is provided for would fall. However, there is no doubt in the code of practice that that is a continuing responsibility of those who have used or are using covert intelligence sources.
I hope that, in the light of that explanation of where we consider the issue to be best dealt with, Mr Gallie will be prepared to withdraw his amendment.
I am grateful to the minister for his comments and for putting the codes of practice on record. Codes of practice can change over the years, but as the Regulation of Investigatory Powers (Scotland) Bill passes through Parliament today, the comments that are made are recorded in the Official Report. They become part of the philosophy behind the bill and will be examined should matters go to court in future.
The minister's words more than covered the issues that I aimed at. On that basis, I am happy to seek to withdraw my amendment.
Amendment 32, by agreement, withdrawn.
Section 5—Persons entitled to grant authorisations under sections 3 and 4
Amendment 33 moved—[Mr Jim Wallace]—and agreed to.
After section 5
We now come to amendment 34, which is grouped with amendments 42, 52, 54 and 57. The minister will move amendment 34 and speak to the other amendments in the group.
The purpose of amendment 34, and of the amendments that are grouped with it, is to ensure that the bill covers the activities of the Scottish Crime Squad. I should explain that, from the outset, the Executive has been aware of the need for the bill to cover the Scottish Crime Squad. However, questions were raised about how that could be done best, given that the Scottish Crime Squad is not established by statute, but by collaborative agreement under section 12 of the Police (Scotland) Act 1967. Those questions have been resolved and that resolution is reflected in this group of amendments.
Amendment 34 provides for officers of the Scottish Crime Squad to authorise directed surveillance and the conduct and use of covert human intelligence sources. It also provides that the Scottish Crime Squad will be able to use intrusive surveillance by applying to the chief constable of the relevant police force for the area in which that intrusive surveillance will take place.
It is intended that the Scottish Crime Squad will become the operational arm of the Scottish Drug Enforcement Agency and so will fall within the category that is provided for in amendment 34, which provides for that development to take place.
I hope—indeed, I am sure—that members will agree that the work that is undertaken by specialist teams in combating drug trafficking and other serious crime in Scotland is very valuable. We recognise the need to ensure that the legislative framework is in place to enable such teams to function efficiently.
I move amendment 34.
I take on board the minister's comments, although I confess that when I saw amendment 34 I was somewhat surprised that it should have been lodged at such a late stage, given the level of debate that has taken place. I do not know whether the lodging of the amendment was a result of the way in which the legislation has had to be rushed through Parliament. Will the minister indicate why it was lodged at stage 3, given the consideration of the bill that was undertaken at stage 2?
As I indicated, we knew from the outset that the Scottish Crime Squad had to be covered by the bill and that there was a conceptual difficulty because that body was not established by statute. It was not easy for the draftsmen to take that off the shelf, as it were, and slot it neatly into the bill. One could not say, "The Scottish Crime Squad, as defined in section whatever of the Police (Scotland) Act 1967", because that squad was constituted by way of a collaborative arrangement.
This provision is necessary and must be in place by 2 October—amendment 34 is a result of the fact that we knew from the outset that the position of the Scottish Crime Squad had to be ironed out. We have managed to work out the way in which the amendment can be slotted into the bill properly to ensure that such important work is covered.
Can the minister advise members how many officers serve in the Scottish Crime Squad?
No—I am sorry that I cannot do so off the top of my head. However, I am sure that I will be able to give Mr Canavan that information before the end of the debate.
On three occasions, I raised my concern about where the Drug Enforcement Agency was covered in the bill and was given assurances that the agency was catered for. However, these substantial amendments have been lodged at the last minute. I ask the Deputy First Minister to expand on that.
I have little to add to my comments. The Scottish Crime Squad will be the operational arm of the Scottish Drug Enforcement Agency. The provisions that the amendments seek to insert in the bill will create the legislative framework in which the Scottish Drug Enforcement Agency and the Scottish Crime Squad, acting as the agency's operational arm, will be able to carry out important modes of inquiry.
There is a distinction between the three categories. Intrusive surveillance, which is the most intrusive category, would require authorisation by the chief constable of the area. Directed surveillance and the conduct and use of human intelligence sources would be overseen by senior officers of the Scottish Crime Squad. As I said, the Scottish Crime Squad does not have a statutory basis and requires collaboration between police forces in Scotland. That is why it has been important to work out the proper statutory way in which its activities can be covered.
In response to Mr Canavan's question, I can now inform him that there are more than 100 officers in the Scottish Crime Squad.
Amendment 34 agreed to.
Section 6—Authorisation of intrusive surveillance
Amendments 35 and 36 moved—[Mr Jim Wallace]—and agreed to.
Section 7—Rules for grant of authorisations
Amendments 37 to 44 moved—[Mr Jim Wallace]—and agreed to.
Section 8—Grant of authorisations in cases of urgency
Amendments 45 to 51 moved—[Mr Jim Wallace]—and agreed to.
Section 9—Notification of authorisations for intrusive surveillance
Amendment 11 moved—[Mr Jim Wallace]—and agreed to.
Section 10—Approval required for authorisations to take effect
Amendment 12 moved—[Mr Jim Wallace]—and agreed to.
Amendments 52 to 54 moved—[Mr Jim Wallace]—and agreed to.
Section 11—Quashing of authorisations etc
Amendments 13 to 16 moved—[Mr Jim Wallace]—and agreed to.
Section 12—Appeals against decisions by Surveillance Commissioners
Amendments 55 and 56 moved—[Mr Jim Wallace]—and agreed to.
Amendments 17 and 18 moved—[Mr Jim Wallace]—and agreed to.
Section 14—Information to be provided to Surveillance Commissioners
Amendments 57 and 58 moved—[Mr Jim Wallace]—and agreed to.
Section 15—General rules about grant, renewal and duration
We now come to amendment 59, which stands on its own. Phil Gallie will speak to and move amendment 59.
We were on a nice run. I would be very happy if we just said, "Agreed" and carried on.
Amendment 59 refers to the general rules about grant, renewal and duration of authorisations. It has been drawn to my attention by the Law Society of Scotland. To a degree it is a dotting the i's and crossing the t's amendment. It insists that all authorisations must be signed and dated and that the designation of the person who is signing is applied to the authorisation.
The Law Society of Scotland is of the view that authorisations must be in writing, subscribed and dated. It is also essential that the capacity in which the granter is acting is specified on the authorisation. The aim is to enable those who act on the authorisation to ascertain whether the authorisation is ex facie valid. Those conditions apply currently to the granting of common law search warrants in Scotland and should therefore be extended to the granting of authorisations in this matter.
It seems to be a minor but authentic point, which I ask the minister to take on board.
I move amendment 59.
I have some sympathy with Phil Gallie's amendment, because it is similar to the amendment that I lodged at the Justice and Home Affairs Committee during stage 2.
I would like reassurance from the minister, because I recall that he stated at stage 2 that the provision to which he referred would be made under the codes of practice. I will be grateful if he will confirm that that will be the case.
I know that extensive amendment swapping in one shape or form has taken place between Mr Gallie and Mr Matheson in regard to different parts of the bill.
I am aware of the arguments that were put forward at stage 2 that the authorisation process under the bill should be brought into line with authorisation for search warrants. However, there is an important difference between the two situations. The information on a search warrant exists for a specific reason—so that it can be scrutinised by the owner or resident of the property that is to be searched. It is clearly important in such circumstances that the person understands who has authorised the search warrant.
The situation regarding an authorisation under the bill is different. This has been the subject of extensive debate during consideration of other sections. It is clear that, for very good reasons, most subjects of surveillance will not be aware that they are under observation. There is not, therefore, the same requirement for an authorisation to be presented to and readily understood by the subject of that authorisation—it would be incredible if it was. I cannot envisage the circumstances in which undercover officers or agents would run up to surveillance targets to show them the authorisation to survey them covertly.
However, that is not to say that there is any intention under the bill to hide the identities of authorising officers. The bill specifies that that and any other information must be provided to the surveillance commissioners, to enable them to carry out their duties. The Regulation of Investigatory Powers Act 2000 also provides that it shall be the duty of specified persons, including all police forces, to disclose or provide to the tribunal all such documents and information that the tribunal may require to exercise its jurisdiction, which is pretty all-encompassing. As members know, that will include cases brought by the public under the bill.
As I said at stage 2, the contents of notifications of authorisations for intrusive surveillance will be set out in a Scottish statutory instrument—I think that that answers Mr Matheson's point—to be laid before the Parliament after the bill receives royal assent, while authorisations for directed surveillance and the use of covert human sources will, in practice, contain the name and rank of the authorising officer.
I therefore ask Mr Gallie to withdraw amendment 59.
I thank the minister for that. I do not understand why we need a statutory instrument to address this issue. I recognise that the person who is under surveillance will not be aware of that fact, but we could be talking about a chain of individuals involved in the surveillance activities.
Basically, it is a protection—under civil law perhaps—that people carrying out their job should be fully aware of the terms under which they are working. That is why the Law Society suggested this amendment. I still have some sympathy with that view. If the minister will address the issue by statutory instrument, I suppose that, somewhere along the line, all our objectives will have been met. I seek leave to withdraw the amendment.
Amendment 59, by agreement, withdrawn.
Section 16—Cancellations of authorisations
We move now to amendment 19, on authorisation for cancellation by deputy.
Amendment 19 is a tidying-up amendment. Section 16(3) provides that an authorising officer's deputy is under an obligation to cancel an authorisation for surveillance if he or she believes that the authorisation no longer satisfies the requirements of the bill. At present, the section does not qualify that obligation by indicating that the necessity to cancel arises only in the absence of the deputy's superior who granted or renewed the authorisation. The purpose of the amendment is to qualify the obligation.
I move amendment 19.
Amendment 19 agreed to.
Amendments 60 and 61 moved—[Angus MacKay]—and agreed to.
Section 17—Functions of Chief Surveillance Commissioner
We now come to amendment 20, which is grouped with amendments 62, 21, 65 and 70.
This is a group of technical amendments to the provisions that relate to the tribunal that was established by the Regulation of Investigatory Powers Act 2000, which that act specifies will be the forum for complaints arising from authorisations under the bill. As with the commissioners and the National Criminal Intelligence Service, for the avoidance of doubt we seek to make it clear that we are not seeking in the bill to confer functions on the tribunal.
Amendment 62 makes it clear that the bill does not seek to specify what assistance the tribunal may require of the commissioner. Amendment 65 aims to remove any doubt that the right to complain to the tribunal is conferred by the Regulation of Investigatory Powers Act 2000, rather than by this bill. Amendment 70 makes it clear that the bill does not require the tribunal to take account of the codes of practice.
The other two amendments in this group, amendments 20 and 21, insert a missing "the" into the text, and correct the numerical reference to the section of the Regulation of Investigatory Powers Act 2000 that deals with the tribunal.
I move amendment 20.
I will speak to amendment 62. I understand what the minister said about these being technical amendments. However, I see that the amendment would introduce a change to the terminology in relation to how the chief surveillance commissioner will give information to the tribunal. As it stands, section 17 states that the chief surveillance commissioner shall give information to the tribunal
"as the Tribunal may require."
The amended section would state that the chief surveillance commissioner shall provide such information as "is appropriate".
I could envisage a situation in which one chief surveillance commissioner thought that certain information was appropriate to pass to the tribunal and another thought that it was not. I am concerned about whether guidance will be issued to chief surveillance commissioners or whether guidance on what should be considered appropriate will be included in the codes of practice, so that there is consistency in what chief surveillance commissioners think is appropriate for the tribunal process. Does the minister think that the amendment could impede the role of the tribunal if there is no guidance in the codes of practice or elsewhere?
It seems that there has been a shift in the balance of power. As section 17 stands, the tribunal determines what it may require. Under amendment 62, which is more than technical, it is the chief surveillance commissioner who decides what is appropriate.
Michael Matheson and Christine Grahame raised one or two issues there. The debate about whether the terminology should be "may" or "is appropriate" is interesting, because neither is a terribly precise form of language. "May" is an enabling term, whereas "is appropriate" is perhaps more a term of judgment.
I appreciate the point that Michael Matheson seeks to make, but the Executive is not persuaded that the amendment would make a material difference to the way in which the tribunal operates or that it would hamper the tribunal's capacity to fulfil its purpose. I am happy to consider the possibility of addressing the issue in part when we consider the code of practice and any final guidance to be issued. I can give that undertaking, but I cannot at this stage give an undertaking that we will bring forward anything specific or concrete. However, I will ensure that we approach the matter with an open mind.
Amendment 20 agreed to.
Amendment 62 moved—[Angus MacKay].
The question is, that amendment 62 be agreed to. Are we agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Baillie, Jackie (Dumbarton) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Douglas-Hamilton, Lord James (Lothians) (Con)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Galbraith, Mr Sam (Strathkelvin and Bearsden) (Lab)
Gillon, Karen (Clydesdale) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Goldie, Miss Annabel (West of Scotland) (Con)
Gorrie, Donald (Central Scotland) (LD)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (Edinburgh Pentlands) (Lab)
Harding, Mr Keith (Mid Scotland and Fife) (Con)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Jenkins, Ian (Tweeddale, Ettrick and Lauderdale) (LD)
Johnston, Nick (Mid Scotland and Fife) (Con)
Johnstone, Alex (North-East Scotland) (Con)
Kerr, Mr Andy (East Kilbride) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
MacKay, Angus (Edinburgh South) (Lab)
MacLean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McAllion, Mr John (Dundee East) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
McLeish, Henry (Central Fife) (Lab)
McMahon, Mr Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Monteith, Mr Brian (Mid Scotland and Fife) (Con)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, Mr John (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland) (LD)
Simpson, Dr Richard (Ochil) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North-East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Thomson, Elaine (Aberdeen North) (Lab)
Wallace, Ben (North-East Scotland) (Con)
Wallace, Mr Jim (Orkney) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
Against
Adam, Brian (North-East Scotland) (SNP)
Campbell, Colin (West of Scotland) (SNP)
Canavan, Dennis (Falkirk West)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Elder, Dorothy-Grace (Glasgow) (SNP)
Ewing, Dr Winnie (Highlands and Islands) (SNP)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Ewing, Mrs Margaret (Moray) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Gibson, Mr Kenneth (Glasgow) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Lochhead, Richard (North-East Scotland) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
MacDonald, Ms Margo (Lothians) (SNP)
Matheson, Michael (Central Scotland) (SNP)
McGugan, Irene (North-East Scotland) (SNP)
McLeod, Fiona (West of Scotland) (SNP)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)
Paterson, Mr Gil (Central Scotland) (SNP)
Quinan, Mr Lloyd (West of Scotland) (SNP)
Robison, Shona (North-East Scotland) (SNP)
Ullrich, Kay (West of Scotland) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Wilson, Andrew (Central Scotland) (SNP)
Abstentions
Gallie, Phil (South of Scotland) (Con)
The result of the division is: For 76, Against 28, Abstentions 1.
Amendment 62 agreed to.
Section 18—Co-operation with and reports by Commissioner
We move to amendment 63, which is grouped with amendment 64. I invite Angus MacKay to move amendment 63 and speak to both amendments.
Section 18(3) provides that the chief surveillance commissioner will make an annual report to Scottish ministers on the discharge of any functions under the Regulation of Investigatory Powers (Scotland) Act. The bill is currently worded so that this report should be produced
"As soon as is practicable after the end of each calendar year."
At present, the chief surveillance commissioner writes his report on part III of the Police Act 1997 at the end of the financial year, and the intention is that his or her report on the UK Regulation of Investigatory Powers Act 2000 will also be produced at that time of the year. It makes sense for the chief surveillance commissioner's report on the discharge of functions under the Regulation of Investigatory Powers (Scotland) Act to be produced at the same time as reports by the commissioner under the 1997 act, because the same person might well hold the post under the two acts.
The chief surveillance commissioner under the 1997 act has requested that the bill might be amended to make that possible. As a result, this amendment is designed to meet his request and is relatively straightforward, although I am looking somewhat nervously at Michael Matheson as I say that.
I move amendment 63.
Amendment 63 agreed to.
Amendment 64 moved—[Angus MacKay]—and agreed to.
After section 18
We now come to amendment 8, which is grouped with amendments 8A, 8B and 9. I ask Christine Grahame to move amendment 8 and to speak to all the amendments in the group.
I hope that members will bear with me, as I have a lot to say about this amendment. I have battled long and hard and have gone through many hoops for Angus MacKay. I should at least get brownie points for persistence. I think that this is my third draft and, like Topsy, it has growed and growed. It has done so, however, in response to matters of concern that the minister raised about the main point of my amendment.
I should make it plain from the start that my amendment does not give carte blanche to inform all and sundry who have been under surveillance that such surveillance has happened. Although I will see what Phil Gallie has to say about his amendments, I think that they are in the same spirit of mischief that he deplored in Gordon Jackson earlier. I have a feeling that Phil is not going to vote for my amendment anyway.
Members should bear with me as this is a long and complex amendment about civil liberties, which is a very serious matter. I will go through the amendment in some detail, as I know that members are all very busy people and will not have had the time to consider its various parts.
Subsection (1) of the amendment makes it mandatory to inform surveillance subjects. Perhaps members think that that will happen once a certificate has been quashed, ceases to have effect or is cancelled. Indeed, alarm bells might be ringing that all and sundry will be told. However, that is not the case. Subsection (3) of the amendment lists a whole lot of safeguards, including, in subsection (3)(d), the much-maligned catch-all safeguards that we have just got rid of in an earlier section.
Let us examine subsection (3). The recommendation to inform a former surveillance subject that surveillance has ended would not be given if it carried
"a significant risk of prejudice to any ongoing or future operation;"
if it carried
"a significant risk of compromise to the techniques used in ongoing or future operations, or the general capabilities of the police or the National Criminal Intelligence Service to carry out such operations;"
if it carried
"a significant risk to the personal safety of—
(i) any person authorised to carry out surveillance;
(ii) any covert human intelligence . . .; or
(iii) any person from whom information is obtained or access to information gained by such a source;"
which might be the casual person to whom Ben Wallace referred; or the catch-all: if it did not pass
"any further test set out in regulations made by the Scottish Ministers."
That leaves the matter subject to positive affirmation by this Parliament.
Angus MacKay should be fair. I have tried to do everything in this amendment to build in protection for surveillance systems. However, I still think that there is room in this legislation to tell the wholly innocent party about surveillance.
Subsection (4) builds in a timetable for informing the person, which might not be of such significance. Subsection (5) introduces a method of informing a person that they have been under surveillance, and members will see that it is fairly restrictive. When it has been decided that a person ought to be told that they have been under surveillance because there was no reason for them to be under it, they are told
"(a) the period within which the authorisation had effect; and
(b) whether the authorisation was for intrusive surveillance, directed surveillance, or the use of a covert human intelligence source."
That is all that the person will be told.
Subsection (6) says that:
"It shall be the duty of any relevant public authority . . . to provide an ordinary Surveillance Commissioner"
with any information that he or she requires.
My amendment contains many safeguards to ensure that when the commissioner makes up his mind about whether to advise the party that they have been under surveillance, he must be fully informed of all the facts. He would be able to postpone the decision for a six-month deferment period to ensure that he is able to take his time about the decision. Those safeguards are built in to provide protection for the state and the rights of the community as opposed to the rights of the individual.
Subsection (8) provides regulations on which amendment 9 is consequential.
In all the circumstances that I can foresee in practice, my amendment would apply only to a few subjects of surveillance when the authorisation had come to an end. Because of the protective subsections (3)(a) and (3)(b), the amendment would not apply to known felons and drug dealers even if the instance of surveillance—over however long a period—had delivered nothing. It would also not apply to the innocent friend of a known dealer who had been put under surveillance and been found to be unaware of their friend's nefarious activities. Again, that would be because of the protection of subsection (3), with its references to situations such as
"any ongoing or future operation".
However, the amendment would apply to the person who has been wrongly placed under surveillance but who has no connection with wrongdoers. Even then, though, the tests under subsection 3 would apply.
It was interesting to see Jim Wallace rise to speak instead of Ben Wallace when the name "Mr Wallace" was called out. As the bill stands, if a similar cock-up occurred during a surveillance operation and a person with the same name as a suspect was targeted, that person would not be told that they had been under surveillance.
I do not know how much more I can do to accommodate the deputy minister's concern. In that case, why am I bothering? Simply, because it is plainly right for the state, if it has erred and infringed an individual's liberties and privacy, to tell that person what has happened. In support of that view, I enlist the aid of Gordon Jackson's comments in the stage 1 debate. I am not quoting him, but he will agree that he said that if something is right, it is plainly right to do it.
The other reason that I am bothering is that I believe that the bill, unless amended, could be challenged under the European convention on human rights. Article 8 states:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
The key part in all of that is the word "necessary".
Subsection (2) of article 10, which deals with the exercise of freedom of expression, states:
"The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime".
Again, the test of what is necessary is important.
Professor Alan Miller of the Scottish Human Rights Centre said, in Holyrood magazine of 24 April 2000, that this bill is, in effect, the Scottish part of the UK Regulation of Investigatory Powers Bill that is currently proceeding through the House of Commons and attracting significant criticism regarding ECHR compatibility from within the legal profession and from human rights non-governmental organisations.
Giving evidence to the Justice and Home Affairs Committee, Professor Miller said:
"On the one hand, I do not think that the draft bill deserves excessive criticism."
I agree with that. He continued:
"It should be welcomed. Its stated aim is to provide a legal framework for police surveillance to attempt to achieve ECHR compatibility, so it will be an improvement on the present situation. I think that that is recognised by everyone. The draft bill tries to find a fair balance between individual privacy rights and the public interest.
On the other hand, we all know that, to all intents and purposes, this is a UK bill. We should be aware that the UK has a poor record on the issue of surveillance and ECHR compatibility. Members should also be aware that the ECHR is really only a safety net; it is the lowest common denominator among the states of the Council of Europe . . . Therefore, a certain amount of vigilance is required over the bill."—[Official Report, Justice and Home Affairs Committee, 10 May 2000; c 1208-09.]
The Law Society of Scotland has stated its concerns. A Law Society witness told the Justice and Home Affairs Committee:
"However, the right of privacy exists under the convention and if that right is invaded, there has been a violation . . . When that law comes"—
he was referring to the RIP bill—
"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."—[Official Report, Justice and Home Affairs Committee, 15 May 2000; c 1247.]
I also quote Gordon Jackson, speaking during the stage 2 debate—this is his starring role. I warned him of this, as it was only fair. I have not been cruelly selective; I think that this gives a fair flavour. I do not think that everybody wants to hear everything that he said, but I quote him from the Official Report of the Justice and Home Affairs Committee's meeting of 4 July.
"The bottom line is that there will be occasions where people are wrongly put under surveillance. I do not say that because of some conspiracy theory, but because that is simply the nature of such things: whether it is a cock-up, a conspiracy, a simple mistake or bad faith, it will be clear that certain people, over the years, should not have been put under surveillance."
Gordon went on to say that
"there is no reason why, when it is clearly discovered that a person has wrongly been put under surveillance, that person should not be told. That seems to be a reasonable and fair safeguard for the rights of the citizen. The presence of such a provision is likely to focus the mind as to when it is appropriate to conduct surveillance operations."
He continued:
"My point is very simple. There should be a provision in the legislation so that where it becomes clear after authorisation has been given that, for whatever reason, a citizen should not have been the subject of a surveillance operation, the system is open about it . . . As I said in the chamber, that is the nature of the modern world. I am against secrecy whose only purpose is to cover up a mistake that has been made . . . There are several ways in which provision could be made—I will not teach my granny"—
I think that Gordon was referring to the Minister for Justice—
"to suck eggs. It could be done by spot checks, or the power to tell people could be given to the surveillance commissioner . . . There is any number of ways of dealing with this . . . I say that the purpose of such a provision is not to compromise operations or to help criminals, but to ensure that where someone has been put under surveillance wrongly, for whatever reason, they should be told that that has happened and it should go into the public domain. That would give the public the comfort of knowing that although the power of regulating serious powers is being given to law enforcement agencies, if someone is wrongly surveilled that fact will become public and will not remain a secret. I do not think that it is impossible to strike a balance here. I hope that the Executive will introduce such a provision before we have to argue this matter seriously in the chamber."
In correspondence with Angus MacKay, I have tried to achieve that, and I think that I have come to the bottom line. My view now is that the minister is simply opposed in principle to cases of wrong surveillance becoming public.
I also quote Scott Barrie, speaking in the same stage 2 debate. He said:
"I have a great deal of sympathy with what Christine Grahame has tried to do. I am not sure that I would have voted for her amendment, because it is too wide-ranging".
Well, it ain't wide-ranging now, Scott.
Euan Robson said:
"The minister will agree that there is a degree of cross-party concern on this point. Almost all of us are concerned that the tribunal will have very little work because people will not know that they have been the subject of surveillance."—[Official Report, Justice and Home Affairs Committee, 4 July 2000; c 1556-57.]
Those comments were made at stage 2, which is a much happier place than stage 3.
I do not know whether Christine Grahame was going to go on to name me, but she has named several members of the Justice and Home Affairs Committee and has quoted them. Other than the points raised by the committee members, does Christine feel that strong evidence was given by witnesses to the committee on her points about amendments?
I do not think that the police witnesses were terribly interested in the line that I was taking, but we must remember that the bill does not just deal with criminal investigations and drugs; it deals with public disorder and other issues. As I said earlier, I foresee that notifying people of surveillance would be more likely to happen in those circumstances where entirely innocent individuals are also involved. The problems raised by the surveillance of known felons whose associates and families are unaware of their activities are provided for under my amendment. The police witnesses focused mostly on criminal activity, which is why I quoted Gordon Jackson at length.
A tribunal is referred to in section 19. However, I do not understand how a person who has been under surveillance can use that tribunal to make a complaint. The tribunal is concerned with procedure and is a creature of the UK, operating under UK regulations. I received a letter from Angus MacKay on 28 August, when I addressed this matter. He wrote:
"I do, however, continue to have a fundamental objection to the principle on which your amendment is based, namely that there should be a duty in each and every case, irrespective of whether the surveillance was properly authorised and carried out in accordance with the appropriate code of practice, to disclose the fact of that surveillance unless the authorising officer perceives a significant risk in doing so."
That is not fair to my amendment, and reduces considerably the number of people who might be notified.
In the same letter, he says:
"You say that your proposal would be more efficient than relying on the tribunal to disclose to people who had a suspicion that surveillance had taken place. Although the rules for the tribunal's operation have not yet been finalised, it is clear that the tribunal will not allow fishing expeditions. In other words the tribunal will not confirm to someone that surveillance had taken or was taking place unless there was a case to consider."
How on earth—apart from tumbling over the infamous binocular man in the lupins—will someone ever get a tribunal to find out about surveillance? A suspicion will not clear it. The tribunal is a red herring of democracy.
At the meeting of the Justice and Home Affairs Committee yesterday, I listened carefully to Jim Wallace's views on an open and democratic Scotland. He spoke about that in the context of the future freedom of information bill. This information on surveillance is not going to be available to anybody, and that does not reflect an open and democratic Scotland. I want the Liberal Democrats to consider that, as their party has a fine record on civil liberties issues.
This is a free vote for the SNP. I hope that it is a free vote for the other parties. These are serious arguments. I hope that it is not the case that we are not going to consider this issue seriously because the new English legislation does not consider it. I am not charging the Executive with that, but I hope that—as it did earlier, for the smaller but nevertheless important issue of the catch-all subsection—the Parliament will consider this matter in the context of Scottish democracy. Recognising the openness and all the safeguards that I have built into it, I ask the Parliament to give amendment 8 a fair wind.
I move amendment 8.
I call Phil Gallie to speak to amendment 8A.
Amendment 8A will not be moved. I feel deeply chagrined by Christine Grahame's suggestion that I would be mischievous on this subject. However, I would be concerned about somebody receiving an epistle through the post that was sparse in information, telling them that they were under surveillance. That might do an individual more harm than good.
Amendments 8A and 8B not moved.
I want to make three comments, and begin by taking up the argument where Christine Grahame finished. I do not think that anyone could say that we are not going to have or have not had an appropriate and full debate on this issue. At each stage of the legislation it has been the most topical and salient of the issues the committee has wanted to discuss and I suspect that it will form the meat of the serious discussion in today's stage 3 debate. I do not think that anyone could say that we have not fully considered the issue.
I want to make clear that the Executive opposes Christine Grahame's amendments. I also want to make clear that I appreciate and understand that Christine has made a number of genuine attempts to bring forward an evolved amendment to address concerns raised by all parties in the course of considering the bill. At earlier stages I said that I am not hostile to the attempt to address those concerns, which are difficult to address because they are about a point of conflict between two things—the protection of civil liberties and the requirement that law enforcement agencies can properly and effectively carry out their work. Where those two things meet is a difficult point. I should also put on record the attempts made by members of other parties to wrestle with the issue in trying to develop an amendment that satisfies all the concerns. I am sure we will hear from other members in the debate.
The amendments in Christine Grahame's name are the latest in a series on the subject, each of which has been fully debated. I am aware that amendment 8 has been drafted to meet many of the practical objections that were raised to earlier versions, in particular the lack of safeguards, and I acknowledge that it is clearly an improvement in that respect. However, it remains the case, as Christine has highlighted, that it is based on a premise that the Executive cannot support. Beyond that, there are further practical defects that mean that it would be difficult to operate.
On the question of principle, Christine Grahame is familiar with the arguments, as I have corresponded with her over the recess. Nevertheless, the arguments should be on the record, as is Christine's viewpoint. The fundamental objection the Executive has is that the amendment specifies a duty in each and every case, irrespective of whether the surveillance was properly authorised and carried out in accordance with the appropriate code of practice, to disclose the fact of that surveillance unless the authorising officer perceives a significant risk in doing so. We believe that that would create an anomalous position when compared to other investigation techniques used by the police. The police have a duty to make all due inquiries about crime that could, for example, include seeking relevant details about suspects from other public authorities or financial institutions or perhaps putting in place a telephone intercept. In none of those cases are the police required to disclose the fact of their inquiries to the subject of them even if nothing untoward has been found. Furthermore, the police argue—we believe rightly—that to disclose in even limited circumstances how and when they might use particular techniques would, in the long run, work to the benefit of criminals rather than society generally. The use of surveillance or human sources is not different in that respect, in our view, from other methods.
Secondly, it is inevitable, despite the safeguards put in place beforehand—and many have been built into Christine's amendment—that a requirement to disclose, unless in certain circumstances, will lead to cases where it will be seen in retrospect that disclosure has helped criminals to evade justice. That is because a police officer may well take the view that there is a risk to operations, but not a significant risk as required by the amendment. But of course, he or she cannot see into the future: the risk may subsequently materialise. In our judgment, the risk that operations could be compromised could also lead to other law enforcement agencies declining to work with Scottish police forces.
I have one final point on the principle. We believe that the amendments are unnecessary because we are putting into the structure of the bill a robust system of oversight to ensure that the powers in the bill are not abused. There is the system of chief, ordinary and assistant surveillance commissioners, who will all have judicial experience and who will all have staff to assist them as required.
I have described three reasons why we consider the principle of the amendments inappropriate. There are also, as I mentioned at the outset, some practical points that would make the amendments difficult to operate. First, amendment 8 provides for a number of circumstances in which disclosure should not be made; but, as I understand the reading of it, amendment 8 does not include the situation in which surveillance has uncovered evidence of wrong-doing. The situation could therefore arise where evidence of crime was found and arrests and charges were pending, but because no further operations were planned against the target, there might be a requirement to disclose the surveillance to the suspect. I appreciate that that defect could be fixed by means of the further test that is referred to in subsection (3)(d) in amendment 8; but that illustrates the difficulties in seeking to prescribe in legislation the time when it becomes safe to reveal the use of particular law enforcement techniques.
A much more serious difficulty arises with the use of the term "significant risk" in amendment 8. We are sure that that would give rise to problems in interpretation. It would be extremely difficult to define when a risk became a significant risk. Furthermore, I am unable to agree that the same test of significant risk should apply to the security of operations and to personnel. In the Executive's view, it is right to consider that even a slight risk to the safety of people who volunteer to work in dangerous circumstances should be avoided if possible.
There are a number of practical problems with this amendment. I am sure that we could have attempted to fix some of them, although we believe that this will always be an area where it will be difficult to anticipate, properly and effectively, all the possible circumstances that might arise. More important, we cannot, as I have already stated, support the principle that disclosure must be considered in every case where surveillance has been properly authorised and carried out. I therefore call—pointlessly, I think—on Ms Grahame to withdraw amendment 8.
I support amendment 8. The bill purports to strike a balance between individuals' rights of privacy and the interests—including the security interests—of the wider community. If there is no further reason for surveillance of a particular person, that person should surely have the right to know that he or she had been under surveillance, provided, of course, that there is no risk to any other person. Christine Grahame's amendment contains sufficient safeguards to ensure that there is little, if any, risk to any other person.
There have been some famous—or infamous—cases of people who have been under surveillance by the state. It is reported that even the present Home Secretary and the present Secretary of State for Northern Ireland were under some form of surveillance in their youth, although it is very difficult for us now to comprehend how on earth Jack Straw or Peter Mandelson could be classified as left-wing extremists. Allegations were also made during industrial disputes in the 1980s—particularly during the miners' strike of 1984-85—that miners' leaders were under surveillance through telephone tapping. Even well after the event, we are entitled to an explanation. Some of the reports may have been false, some may have been true. Perhaps the minister could enlighten us this afternoon.
Is it a fact that during the miners' strike the telephone of the late Mick McGahey, for example, was tapped? Were the telephones of any of the other strike leaders tapped, either in their offices or in their homes? In retrospect, many of us can see that the strike was about an honest group of trade unionists trying desperately to save their industry from extinction, but at that time in Scottish and British industrial history many of them were classified as enemies of the state. The police and, perhaps, other security forces were using covert means to get information to break the strike.
I do not dispute some of Mr Canavan's observations, but—and the minister may be able to clarify this—what he is talking about would be considered subversion and would be covered by the security services. Under security services legislation, people who have been under surveillance have a right to be informed of that. The period that has to elapse before that can happen is perhaps too long, but that can be changed. Such surveillance is not criminal and is not covered by this bill. Subversion comes under security service legislation, people have a right to be informed of whether they have been under surveillance, and the situation is reviewed on a 10-yearly basis.
I read the bill as meaning that the authorities can authorise a surveillance order if they perceive there to be a threat of disorder. At the time of the miners' strike there were perceived threats, real or imaginary, of disorder. My fear is that this legislation could be used if similar circumstances ever arose. When the surveillance order is no longer applicable and the authorities admit that there is no further reason for it, the person who has been the subject of that order ought to have the right to know that he or she has been under surveillance.
In summing up, can the minister tell us who at ministerial level has access to information about people who were wrongly under surveillance some time ago during industrial disputes? At the time of the miners' strike, for example, I understand that the Secretary of State for Scotland was required to authorise telephone tapping. Where is that information now? Where is the list of people whose telephones were tapped? Is it in the Scotland Office or the Scottish Executive? Does the Minister for Justice have access to it? Does John Reid have access to it? Will the Scottish Executive be more forthcoming about telling us what went on at that critical time in Scottish industrial history?
The new Scottish Parliament is supposed to herald an era of openness, democracy and accountability, including freedom of information. We hear Executive ministers, particularly Liberal Democrats, trumpeting the desirability of freedom of information. Innocent people should have the right to know whether, why and how they were under surveillance. The state is the servant of the people and, if it makes an error, it should be big enough to admit to that and to inform the people who were wronged.
I have no wish to curtail debate on this important subject, but if we finish by 12 o'clock I will take the full half-hour debate at that point. About five or six members have indicated that they wish to speak.
I am glad that I pressed my button to speak before I was named, and perhaps shamed, by Christine Grahame for what I said at stage 2. Her quotes from the Official Report are quite accurate. She might have gone on to say that I made similar comments in the stage 1 debate.
Christine Grahame should be congratulated on introducing a series of amendments on this important subject. She did not press her previous amendment to a vote in committee because she agreed to take it back and consider it further. Members have said that these issues strike at the heart of the bill, which is concerned with the civil liberties of our citizens versus the duties and responsibilities of the state to detect and prevent crime.
The Deputy Minister for Justice has already indicated the Executive's desire not to impede the detection and prevention of crime. Although Christine Grahame has moved a long way from the position of her original amendment, including many caveats, the new amendment does not go far enough.
I approached the subject clear in my own mind—I thought that it would be relatively straightforward to include the provisos that Dennis Canavan has just mentioned. At the beginning of the summer I intended to lodge an amendment to that effect but, unlike Christine Grahame, I was unable to come up with a form of words. As I thought through the matter it became increasingly difficult. In essence, it is something that most of us would want to do, but in reality it is something that is very difficult to achieve. That is why I think that it would be better to support the comments that Angus MacKay made this morning.
However, Christine Grahame pointed out that if the amendment was not accepted, we might be open to a challenge under the European convention on human rights. I ask the minister to make explicit what legal advice has been given, whether we are open to such a challenge and whether the Executive is totally confident that the measure is robust.
Christine Grahame has quoted my comments at stage 2 at some length. I neither depart from those comments nor apologise for them. I said that where a surveillance operation has been wrongly carried out, the person who had been under surveillance should be told. A very strong part of me believes that; in an ideal world, that is what I would like to happen. Secrecy should not be used to hide mistakes made by the state. Given that perspective, I was anxious to achieve something in this legislation that would bring that ideal into practice. I made that clear in the committee and I have made it clear to Angus MacKay and Jim Wallace on several occasions.
No one could have tried harder than Christine Grahame—I hope that she will accept this comment in the spirit that it is given—to achieve that end. However, that is where the problem lies. Having wanted to achieve that end, one had to turn the coin in this balancing exercise and recognise that there are reasons for not doing so.
I am not here to repeat what the minister says, but some of those reasons are very powerful. The amendment would create an anomalous situation. The police carry out all sorts of investigations every day. They do not have a policy of telling the subjects of those investigations what they are doing. I accept that that is different, but it is not that different. There are practical difficulties raised by the amendment. Every authorisation for surveillance would need to be reviewed in detail retrospectively. The fact that it would create a huge mountain of work is not a reason not to do something, but it would certainly place a tremendous burden on the system.
However, most important, there are some very serious and very bad people out there—
There are some in here, too.
Unlike the people in here who are bad, the bad people out there are also very sophisticated. Inevitably, such people will make use of the provision created by Christine Grahame's amendment. They will take comfort from it. Whenever the authorities are forced to reveal details of their operations, people who have a bad agenda will use that for their own purposes. That is why, not without reluctance and with a great deal of hesitation, and having made my position clear at stage 2, I have come down on the side of saying that Christine Grahame's provision is not workable. I say to her that, in fairness, I did say at stage 1 that I had no concluded view and that it was a difficult matter.
It is a question of balance, and we have done well in striking it. For example, with the Executive's agreement we took out the catch-all provision. That was important. Dennis Canavan talked about surveillance situations that people should now know about, but what we have tried to do is stop those situations happening in the first place. It may be said that we will not be successful in that, but we have tried. We have made sure that we have Scottish judges as Scottish surveillance commissioners. The balance has to be that these operations take place and are not revealed thereafter. Part of me does not like that, but in this world we live in these balances have to be struck. I have come to the view that we should proceed in the way in which the Executive is suggesting.
I counsel caution—from the way in which the minister has presented this matter, that seems sensible. The proposal in the bill is dangerous, which is why I commend Christine Grahame's amendment. The concern involves the grey areas where state security services can claim that serious criminality is behind something, when it is not that at all, but just red meat politics. People may be snooping and spying on those on whom they should not snoop and spy, such as trade unionists.
Like Dennis Canavan, I would like to know the truth about telephone tapping of the late Mick McGahey, whom I knew. He was an honest man who stood up for his miners. There have been umpteen stories over the years about McGahey's phone being tapped—and, indeed, the phones of other trade union leaders in Scotland. We do not accept that that should happen just because of a person's position, which is why we must know the truth, even from the past.
Mr Canavan mentioned Jack Straw, whom he said could hardly be regarded as a great left-wing threat. Of course, at one stage Jack Straw was regarded as such. Some of us remember when he was a rebellious student leader. That was at a time of rampant paranoia about people getting their phones tapped; everybody in student circles was alleging it. I remember saying that the ultimate humiliation would be if we found out that our phone was not tapped because we were not that important. We all remember what Mr Straw was like. Of course, he changed his coat when he acquired a high position in Mr Blair's Government—a Government that has allowed more phones to be tapped than any other Government in recent decades.
I, too, want to put on record my feelings about the history of the 1970s and 1980s, phone tapping and civil liberties issues. There is a long list of people, such as Campbell Christie, who took their cases to the European Court of Human Rights. I want clarification on how Christine Grahame's amendment would give rights to this Parliament or allow Mick McGahey to know whether his phone was tapped, given that we are not dealing with telecommunications.
Unfortunately, the late Mick McGahey and many of his generation are not around to know the truth. However, retrospectively, even a long period afterwards, revelations should be made about the phone tapping of people who have not faced criminal charges. The minister's proposition is dangerous, and I support Christine Grahame, who eloquently and sensibly put a case that upholds civil liberties.
Dorothy-Grace Elder must be older than she looks if she can remember the time when Jack Straw was a left-wing threat to anyone. I have been in the Labour party a long time, but I am not that old.
I ask the minister to assure us that there is no disagreement in principle with what the amendment seeks to do. If the Executive and the Parliament have learned anything from their first year, surely they have learned that mistakes will be made and errors will occur. It is a fact that people who are wholly innocent will be subjected to unjustified official surveillance. We have to accept that that will happen. I want the Executive to make it clear to the Parliament that it thinks that it is wrong for that to happen. If practical, such people should have the right to know that they have been subjected unfairly to surveillance.
I realise that the important words there are "if practical". The minister outlined the practical objections, some of which I agree with. However, the fact that there are anomalies—people have the right to know about this technique but not that technique—is not an argument for not extending the right to know. The right should be extended to cover all the techniques that are used by the police forces in this country.
I take on board the view that, if the exercising of such a right represents a risk to operations in any way, it would be unwise for the Parliament or the Executive to allow that to happen. However, I hope that at the end of the debate the minister will say that what is perceived to be a risk to operations will be under continual review and that, if someone comes up with a way of guaranteeing the security of police operations while giving people the right to know that they have been under surveillance, we will ensure that that happens.
It is important that the Parliament understands the implications of the European convention on human rights. If a challenge is made to what the Parliament is enacting this morning, we should be aware of what the chances are that the European Court of Human Rights will uphold an appeal made by someone who has been denied the rights that we are discussing. I hope that the minister will deal with that.
Finally, I was interested in Christine Grahame's reference to Professor Miller's comment that the UK's record on disclosure and human rights is weak and one of the worst in Europe. Will the monarchists among us reflect that that may be the case because, unlike the residents of other countries in Europe, we are not citizens but subjects of a constitutional monarchy? Perhaps the fundamental change that the Parliament should be considering, possibly in liaison with the Parliament south of the border, is how we can move to become real citizens—like people in the rest of Europe—instead of subjects.
This is potentially the most difficult area in the bill. I suspect that, when we vote that the bill be passed—as I hope we will later today—there will be some omissions. We cannot get everything right in one go, because—as I understand it—this is the first time that such a framework covering investigatory authorities and powers has been introduced.
There is a tension between the need to survey criminals and the rights of the individual, but the amendment does not deliver what is necessary. If someone has been wrongly surveyed, ideally they should be told. However, there is another element to this. I have yet to make up my mind whether, if surveillance has taken place but there has been no harm or prejudice to the person involved, it is sensible or relevant to alert them to the situation.
My key objection to the amendment, however, is that the wrong person has been identified as triggering the process that would lead to disclosure to the individual concerned. The authorising officer would be told to review what they had done and, if they had done something wrong, they would have to institute a process that would lead to the disclosure to the individual. Surely the person who should take that action is the surveillance commissioner, who should act in a regulatory capacity, as it were, in order to review the actions of the authorising officers. Members would have welcomed the incorporation of such a provision into the bill if we had been able to find a proper mechanism for so doing. Had we done so, the focus—the fulcrum—would have been the surveillance commissioner, who should have undertaken those duties and who should have been given those responsibilities. As I understand the amendment, the person who made the mistake in the first instance is the one who is being asked to trigger the process. Perhaps the authorising officer would take that action quite readily if a genuine error has been made. However, if there has been duplicity or connivance on the part of the authorising officer, is it likely that that officer would refer himself or herself to the surveillance commissioner?
I believe that this well-intentioned amendment is seriously defective in that regard, as well as in terms of the practical points made by Angus MacKay. Although a mechanism for protecting the individual would have been welcome, had we been able to find one, I do not think that the amendment delivers what members want.
Like other members, I support the aims that Christine Grahame is trying to achieve with her amendment and I congratulate her on the work that she has done. However, on balance, a number of factors lead me to believe that I cannot support the amendment.
Emphasis must be placed on the importance of granting authorisation and on the rigorous tests that should take place before authorisation is granted in the first place. Both Dennis Canavan and Dorothy-Grace Elder mentioned telecommunications; it is important to stress that we are not dealing with telecommunications today—there has been some confusion on that point. Christine Grahame's amendment, even if we were to accept it, would not give any of us the right to know that our telephone had been tapped. Perhaps that is a debate for another day.
I want the minister to respond in the strongest terms to a number of points. The question that must be asked about the cases to which Dennis Canavan and Dorothy-Grace Elder referred is why authorisation was given in the first place. I draw members' attention to other issues that the bill raises, which the Justice and Home Affairs Committee examined in great detail, including our concern about civil liberties. Alan Miller pointed to the categories for surveillance, such as public order and public safety. In particular, he drew our attention to the bill's inclusion of the category of people who gather together for a "common purpose", which could include trade unionists. The granting of authorisation must be of the highest order for everything else to fall into place.
Phil Gallie mentioned informing people that they had been under surveillance. That raises the question whether people should be told why they had been under surveillance. An individual would certainly want to know more than the simple fact that they had been under surveillance. That leads me to believe that informing people is a difficult issue to resolve in legislation. Should people be told why? Should they be told what kind of surveillance they were under?
I still wonder whether the bill should include the category of "wrong person". By that I mean the circumstances in which surveillance is granted for person A but is, in fact, carried out on person B. However, amendment 8 does not address that issue. Records on anyone who has been placed under surveillance wrongly must be destroyed. Any individual would want to know that that had been done. Euan Robson made the point in committee that such action should not be discretionary—it should be an absolute must.
Although the minister does not accept Christine Grahame's amendment, it would be useful if, in replying to the debate, he would explain how the bill balances the rights of the individual with the needs of the state. All members of the Justice and Home Affairs Committee showed a great willingness to try to find a solution to that problem, as did the minister. There is only a tiny difference between us, but we do not think that such a solution can be reached.
Of course, it is not the minister who will be responding; Christine Grahame will have the last word, because amendment 8 is her amendment. Nevertheless, I shall allow the minister to have another cut before asking Christine Grahame to respond.
Thank you, Presiding Officer. I would like to reply briefly to a number of concerns that have been raised by members from all parts of the chamber.
Throughout the passage of the bill, we have attempted to be sympathetic on this issue. I am on record as stating my willingness to listen to arguments about how we might be able to proceed in this area. I have met any member who wanted to meet me to discuss face to face the substance of the issues and the detail of the amendments, and we have engaged in detailed correspondence.
The problem is that nobody has, as yet, found a satisfactory way of addressing in legislation the concerns that have been raised that does not run counter to the other concerns that I have outlined. It is with regret that the Executive has arrived at this position but, having tried to satisfy those concerns, we find ourselves unable to do so. For the reasons that I outlined, we believe that Christine Grahame's amendment does not satisfactorily do so either.
The Executive, the Parliament and the Presiding Officer's office are required to ensure that any legislation, policy or practice that we pursue is ECHR compliant, and we believe that we are in that position. Ultimately, that compliance can be tested only by the courts, but we believe that what we are proposing is ECHR compliant.
As Pauline McNeill has pointed out, the bill does not cover telephone interception, so I ask members to focus on what this legislation is intended to enable police forces to do rather than on wider issues.
Members must bear in mind the fact that today we are setting in statute for the first time procedures that are already routinely used by law enforcement agencies, but without the force of statutory regulation. The whole bill is precisely about protecting civil rights and about ensuring that the enforcement agencies, when they use surveillance techniques, do so in compliance with legislation, codes of guidance and the ECHR. In formulating the legislation, we must strike a balance between what constitutes appropriate civil liberties and what constitutes appropriate law enforcement. We have sought to do that at every turn and I genuinely believe that we have struck a balance that we can be confident will serve us well in the future.
I knew which way the wind would blow from the moment I stood up to speak. It may not be the point of the exercise, but I shall be interested to see how many members will break ranks and vote for my amendment.
Angus MacKay raised the issue of significant risk. The test of significant risk rests with the authorising officer, so a disclosure will not get past him if he thinks that there is a significant risk.
John McAllion made some valid points. Of course the wrong people will be put under surveillance for the wrong reasons, but they will not be told about it. There is no way of compromising on this. If John wants people who have wrongly been put under surveillance, and who should never have been put under surveillance in the first place, to be told about it, he must vote for the amendment. This is not something that he can fence; the Executive has never been prepared to move further on the matter.
The provision in my amendment to notify surveillance subjects would be triggered only when surveillance has been quashed, ceased or cancelled, and then only if no other investigations into criminal operations would be imperilled. It is nonsense to suggest that people would be notified otherwise.
Dennis Canavan mentioned political figures, and his point was quite right. It is a bit of a red herring to keep talking about serious criminals, felons and heavy-duty drug dealers in relation to the bill. Of course the bill deals with the activities of such people, but it also deals with what might be considered criminal activity in relation to public order as defined by the authorising agencies. He is right to say that other activities such as industrial and political activity or demonstrations could come within the remit of the bill.
I do not know what else I could have done to satisfy Scott Barrie's concerns. I have put everything possible into my amendment, including a catch-all and all the safety guards that I could have included, to ensure that the state is not imperilled at all and the community's rights are given as much protection as possible.
Gordon Jackson will wait a long time if he wants to legislate in an ideal world. We are legislating in the real world. I shall quote the words that he used at stage 2. He said:
"There is any number of ways of dealing with this . . . I do not think that it is impossible to strike a balance".—[Official Report, Justice and Home Affairs Committee, 4 July 2000; c 1557.]
What has happened between stage 2 and today that he now finds it impossible to strike a balance? At stage 2, he said that he would not teach his granny to suck eggs and that he could think of all manner of ways of dealing with this problem. Did he put those suggestions to the Executive? Was he asked to do so? I have not seen any constructive attempt to bring forward an Executive amendment.
Does Christine Grahame accept that we found it impossible to come up with a solution? There are occasions on which one says, "I believe that we can achieve this." We tried to do so in good faith. Angus MacKay would say that we tried to the point of trying where we could try no more. Other people tried—Scott Barrie tried and Pauline McNeill tried. Christine Grahame should not suggest that this was not an exercise in good faith on our part. We came to the genuine conclusion that the balance lay the other way. Sometimes people have to admit that they cannot achieve what they had hoped to achieve.
I take it Gordon Jackson is saying that there are not any number of ways of dealing with this, which was his position at stage 2. It is not his position any more. I cannot argue if he has changed his mind.
Euan Robson used the word criminals again, which I think is misleading. The amendment is not directed at the real criminality that is under surveillance. He also, intriguingly, asked what the problem was if somebody had been under surveillance and no harm or prejudice had come to them. If my privacy has been invaded, I consider that harm or prejudice has been done to me. I do not want people opening my mail, listening to my telephone conversations and looking through long lenses at me and my cats. I have real problems with that.
Those are circumstance where definite harm is being done to someone. In some circumstances, it is difficult to say that any distinctive harm has been done to someone as a result of them being followed or watched.
Will Christine Grahame also address the point about the authorising officer being the person who triggers the process?
If Euan Robson would not be unhappy that people had followed him without him knowing, that is okay for him. I would be unhappy about it.
Euan Robson's other point is that the wrong person would be making the decision. Why did he not discuss that with me, if that is his major objection to the amendment? I was open to listening to people's arguments and he never discussed that with me. The amendment is fine as it stands.
I will ask Angus MacKay a final question. Who on earth will apply to the tribunal if they feel that there is a complaint about procedure? I would like an example—we failed to get an example on the miscellaneous and the catch-all.
Anybody who is being brought before a court of law in which evidence is being used that was gathered under the provisions of the bill.
So it would not be somebody who had been under surveillance and did not know about it—they would not be able to come before the tribunal?
Any other person who is concerned that they have been the subject of surveillance, as provided for under the bill, can raise the concern with the commissioners and the tribunal and every complaint will be examined. That is not to say that information will be disclosed, but every complaint will be examined.
That does not satisfy me. Angus MacKay has already said that there will be no fishing expeditions, so it will always be in the hands of the authority to say that there has not been surveillance. The person will never know.
There will be no fishing expeditions for criminals who might seek to clarify whether they have been the subjects of surveillance. If a criminal in that circumstance applies to find out whether they have been under surveillance improperly, the appropriate structure would examine that complaint and report back that the complaint was either founded or not founded. We will not allow fishing expeditions through records, which would tell criminals whether they have been the subjects of surveillance and, if so, how.
I am grateful for that clarification, because that was not in the minister's letter to me. The letter states:
"Although the rules for the tribunal's operation have not yet been finalised, it is clear that the tribunal will not allow fishing expeditions."
It does not say "for criminals", just "fishing expeditions".
I will press my amendment.
The question is, that amendment 8, in the name of Christine Grahame, be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (North-East Scotland) (SNP)
Campbell, Colin (West of Scotland) (SNP)
Canavan, Dennis (Falkirk West)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Elder, Dorothy-Grace (Glasgow) (SNP)
Ewing, Dr Winnie (Highlands and Islands) (SNP)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Ewing, Mrs Margaret (Moray) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Gibson, Mr Kenneth (Glasgow) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Hamilton, Mr Duncan (Highlands and Islands) (SNP)
Harper, Robin (Lothians) (Green)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Lochhead, Richard (North-East Scotland) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
MacDonald, Ms Margo (Lothians) (SNP)
Matheson, Michael (Central Scotland) (SNP)
McGugan, Irene (North-East Scotland) (SNP)
McLeod, Fiona (West of Scotland) (SNP)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)
Paterson, Mr Gil (Central Scotland) (SNP)
Quinan, Mr Lloyd (West of Scotland) (SNP)
Robison, Shona (North-East Scotland) (SNP)
Ullrich, Kay (West of Scotland) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Wilson, Andrew (Central Scotland) (SNP)
Against
Aitken, Bill (Glasgow) (Con)
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Douglas-Hamilton, Lord James (Lothians) (Con)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Galbraith, Mr Sam (Strathkelvin and Bearsden) (Lab)
Gallie, Phil (South of Scotland) (Con)
Gillon, Karen (Clydesdale) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Goldie, Miss Annabel (West of Scotland) (Con)
Gorrie, Donald (Central Scotland) (LD)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (Edinburgh Pentlands) (Lab)
Harding, Mr Keith (Mid Scotland and Fife) (Con)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Jenkins, Ian (Tweeddale, Ettrick and Lauderdale) (LD)
Johnston, Nick (Mid Scotland and Fife) (Con)
Johnstone, Alex (North-East Scotland) (Con)
Kerr, Mr Andy (East Kilbride) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
MacKay, Angus (Edinburgh South) (Lab)
MacLean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McAllion, Mr John (Dundee East) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
McLeish, Henry (Central Fife) (Lab)
McLetchie, David (Lothians) (Con)
McMahon, Mr Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Monteith, Mr Brian (Mid Scotland and Fife) (Con)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Mundell, David (South of Scotland) (Con)
Munro, Mr John (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland) (LD)
Simpson, Dr Richard (Ochil) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North-East Fife) (LD)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Thomson, Elaine (Aberdeen North) (Lab)
Tosh, Mr Murray (South of Scotland) (Con)
Wallace, Ben (North-East Scotland) (Con)
Wallace, Mr Jim (Orkney) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 30, Against 79, Abstentions 0.
Amendment 8 disagreed to.
Section 19—Complaints to the Tribunal
Amendments 21, 65 and 66 moved—[Angus MacKay]—and agreed to.
I call Michael Matheson to speak to and move amendment 6.
If one found oneself before the tribunal, which—given the debate we have just had—is unlikely, one might choose to have some form of legal representation. However, under the bill at present, one would have no entitlement to legal aid to pay for that representation. Very few people are likely to be able to go before the tribunal, as they will not be informed if they have been under surveillance, so I assume that the Executive would not refuse the amendment on the grounds of cost to the Legal Aid Board.
I believe that anyone who is before a tribunal should be provided with the legal representation they require. However, in the light of information that was presented to the committee this week about action that is currently being taken in court, I do not intend to move the amendment.
Amendment 6 not moved.
Section 20—Issue and revision of codes of practice
Amendments 67 to 69 moved—[Angus MacKay]—and agreed to.
Section 22—Effect of codes of practice
I call Angus MacKay to move amendment 22 and to speak to amendments 22 and 24.
These are technical amendments. Amendment 22 corrects an incorrect cross-reference. Amendment 24 corrects cross-references in section 24(3)(a) on order-making powers that are contained in the bill. It appears that those references became false following the insertion at stage 2 of requirements for certain orders and regulations to be subject to affirmative procedure.
I move amendment 22.
Amendment 22 agreed to.
Amendments 70 to 72 moved—[Angus MacKay]—and agreed to.
Section 24—Orders and regulations
Amendment 24 moved—[Angus MacKay]—and agreed to.
Amendment 9 not moved.
Section 25—Financial provision
Amendment 73 moved—[Angus MacKay]—and agreed to.
Section 27—Interpretation
Amendment 74 moved—[Angus MacKay]—and agreed to.
I call Michael Matheson to speak to and move amendment 7.
Amendment 7 refers to section 27 on interpretation. The bill provides no definition of what should be classed as a large group when a warrant is issued. As the bill stands, one of the tests for serious crime is
"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."
In committee, we had a wide-ranging discussion as there was concern that the bill did not provide a definition of a large group. A large group could be considered to be three people, standing outside Faslane, demonstrating on nuclear disarmament. I also understand from my colleagues on the committee that, in criminal law, a mob is classed as a group of between two and three individuals. To ensure that we remove the arbitrary aspect of the bill, we should provide a definition of a large group.
The minister will say, I am sure, that six is an arbitrary figure, but the bill is arbitrary in providing no definition. That arbitrariness would be removed by stating a figure and it is reasonable to state that a large group consists of six or more individuals.
Several members of the committee were sympathetic on the issue, in particular Gordon Jackson, who highlighted the fact that a situation could arise in which after a warrant has been granted, the matter goes to court and a serious argument ensues about whether the warrant should have been issued for a large group of people. Courts could be delayed as a result. That is why we should remove the arbitrary nature of the bill by including a definition of the number of people that constitutes a large group. If the Executive refuses to accept the amendment, we may have to wait for case law to determine what constitutes a large group. I see no harm in defining in the bill the number of people at which a group is considered to be large.
I move amendment 7.
There are a number of points to make in relation to amendment 7, which was discussed at stage 2 when the figure proposed by Mr Matheson was, I believe, 10.
It is important to track the matter back. The figure relates to the definition of serious crime, which is outlined in section 27(7) of the bill. Where serious crime arises, no authorisation for intrusive surveillance—which is about the highest category of surveillance and includes bugging devices in a residential property—will be granted under section 6(2)
"unless the chief constable or the Director General granting it is satisfied—
(a) that the authorisation is necessary for the purpose of preventing or detecting serious crime; and
(b) that the authorised surveillance is proportionate to what is sought to be achieved by carrying it out."
The example that Michael Matheson mentioned—of three, or 33, people protesting outside the Faslane facility—becomes unlikely given both the test of proportionality and the definition of serious crime.
Mr Matheson also said that we might have to wait some time for a court case to come up in order to define the term "serious crime". However, it is important to note that the definition of serious crime that is contained in the bill has existed for the 15 years since the Interception of Communications Act 1985 came into force. In that time, a court case has not been needed as a result of how that act has operated. The definition is also contained in the Police Act 1997 and the Security Services Act 1996. It makes sense for the same test to be applied for similar activities carried out by different bodies involved in investigating serious crime.
During the stage 2 debate, it was suggested that the definition of serious crime might be open to challenge as it is arbitrary. However, who might challenge it? The bodies that will be responsible for the oversight of the application of the definition of serious crime contained in the bill will be the surveillance commissioners. The chief surveillance commissioner has assured us that he is happy with the current definition. Furthermore, it should be noted that on no occasion since 1985 have any of the three distinguished members of the judiciary who have held the post of interception commissioner ever found any difficulty with the definition of serious crime, nor have any of the other commissioners who have considered cases where this definition has been used.
As the Parliament knows, complaints brought in relation to conduct under the bill will be dealt with by a tribunal that is to be set up. The tribunal will replace the security service, the interception of communications and the intelligence services tribunals, none of which has ever queried the definition of serious crime. That suggests strongly that the definition of serious crime that is contained in the bill has been found to be perfectly workable by those who have had to apply it under similar legislation. Changing the bill along the lines that have been suggested would introduce an element of inflexibility that would not serve the public interest.
The stage 2 debate illustrated clearly that it is difficult to quantify in the abstract the number of persons who might be in pursuit of a common criminal purpose that will be regarded as constituting a serious crime. It is arbitrary to pluck a figure out of the air; indeed, Mr Matheson proposed 10 people at stage 2 and now proposes six. What if five people were conspiring seriously to defraud people of their savings? Under Mr Matheson's amendment, law enforcement agencies would be shackled. They might not be able to carry out the surveillance that would be necessary for the protection of the public, as the situation would no longer fall within the definition of serious crime.
Each situation must be examined case by case, which is what has happened in the past 15 years. There will be occasions on which five people acting with a common purpose will be serious enough to justify the use of intrusive surveillance. On the other hand, seven people acting in another criminal context might not be considered sufficiently serious to warrant intrusive surveillance. The bill and the codes of practice emphasise that proportionality is an important concept in determining the application of the provision; we should not set an arbitrary fixed number of persons.
For those reasons, we will resist the amendment. Indeed, we hope that Mr Matheson might even have been persuaded that there are good reasons for withdrawing it.
During stage 2, I lodged an amendment that attempted to define a large number as six or more. That was based on my fear that cases brought before the court might flounder through a lack of certainty about the definition of a large number. Criminals who have been found guilty have walked free recently because of technical difficulties with their convictions. I would hate to think that, somewhere along the line, someone who has had the finger pointed at them and been found guilty might evade any consequences through some spurious argument about what constitutes a large crowd.
Does the Scottish Tory party constitute a large number of people in pursuit of a common purpose, or is it a minuscule number of people in pursuit of no purpose?
The Scottish Tory party represents a smaller presence than in the past, but one that will grow and blossom in the future, as it did in the Ayr by-election when John Scott showed the way.
The minister should consider the issue again and, if nothing else, he should give definite guarantees that never will a criminal escape the consequences of his actions because of a failure to define a large crowd.
I take on board the minister's comments on the definition of serious crime. However, I do not know whether he is aware that a number of experienced individuals misinterpreted this section of the bill, in particular section 27(7)(b), which they thought might apply to a large number of people not committing a serious crime but acting politically or in some other way. Concern was expressed about the need to tighten up this section of the bill.
The minister referred to the fact that a case-by-case approach would be used. The problem with that is that we would end up with a succession of arbitrary figures, as each case might result in a different number being used: a large group for one case might be 10, while for another case it might be seven. The amendment provides a figure for the definition of a large group and removes, rather than creates, any problem relating to making the judgment more arbitrary. I hope that the minister will be persuaded of the need to set such a figure in the bill. On that basis, I press my amendment.
The question is, that amendment 7, in the name of Michael Matheson, be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (North-East Scotland) (SNP)
Aitken, Bill (Glasgow) (Con)
Campbell, Colin (West of Scotland) (SNP)
Canavan, Dennis (Falkirk West)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Douglas-Hamilton, Lord James (Lothians) (Con)
Elder, Dorothy-Grace (Glasgow) (SNP)
Ewing, Dr Winnie (Highlands and Islands) (SNP)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Ewing, Mrs Margaret (Moray) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Gallie, Phil (South of Scotland) (Con)
Gibson, Mr Kenneth (Glasgow) (SNP)
Goldie, Miss Annabel (West of Scotland) (Con)
Grahame, Christine (South of Scotland) (SNP)
Hamilton, Mr Duncan (Highlands and Islands) (SNP)
Harding, Mr Keith (Mid Scotland and Fife) (Con)
Harper, Robin (Lothians) (Green)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Johnston, Nick (Mid Scotland and Fife) (Con)
Johnstone, Alex (North-East Scotland) (Con)
Lochhead, Richard (North-East Scotland) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
MacDonald, Ms Margo (Lothians) (SNP)
Matheson, Michael (Central Scotland) (SNP)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
McGugan, Irene (North-East Scotland) (SNP)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
McLeod, Fiona (West of Scotland) (SNP)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)
Mundell, David (South of Scotland) (Con)
Paterson, Mr Gil (Central Scotland) (SNP)
Quinan, Mr Lloyd (West of Scotland) (SNP)
Robison, Shona (North-East Scotland) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Tosh, Mr Murray (South of Scotland) (Con)
Ullrich, Kay (West of Scotland) (SNP)
Wallace, Ben (North-East Scotland) (Con)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Wilson, Andrew (Central Scotland) (SNP)
Against
Baillie, Jackie (Dumbarton) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Galbraith, Mr Sam (Strathkelvin and Bearsden) (Lab)
Gillon, Karen (Clydesdale) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (Edinburgh Pentlands) (Lab)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Jenkins, Ian (Tweeddale, Ettrick and Lauderdale) (LD)
Kerr, Mr Andy (East Kilbride) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
MacKay, Angus (Edinburgh South) (Lab)
MacLean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McAllion, Mr John (Dundee East) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McLeish, Henry (Central Fife) (Lab)
McMahon, Mr Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, Mr John (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Scott, Tavish (Shetland) (LD)
Simpson, Dr Richard (Ochil) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North-East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Thomson, Elaine (Aberdeen North) (Lab)
Wallace, Mr Jim (Orkney) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 44, Against 63, Abstentions 0.
Amendment 7 disagreed to.
We have made good speed and delivered fair scrutiny. That concludes the consideration of amendments to the bill.
Meeting suspended until 14:30.
On resuming—
Before we begin this afternoon's business I advise members that if, as is likely, the afternoon's business concludes early, I understand that Mr Tom McCabe will seek the Parliament's leave to move a motion to bring forward decision time. Members should be aware that decision time may take place a lot earlier than 5 o'clock.
Secondly, I am sure that members would wish to welcome the third of the Westminster leaders to visit us in this Parliament, the Rt Hon Charles Kennedy MP, leader of the Liberal Democrats. [Applause.]