Regulation of Investigatory Powers (Scotland) Bill
We now move to the debate on motion S1M-1136, in the name of Jim Wallace, which seeks agreement that the Regulation of Investigatory Powers (Scotland) Bill be passed. I invite those who would like to take part in this debate to press their request-to-speak buttons now.
The Parliament has considered a very important piece of legislation at all its stages, particularly in committee at stage 2. I am glad that the constructive examination to which Parliament has subjected the bill during its various stages has countered some of the misleading media coverage of what the bill entails.
For the avoidance of doubt, I will make clear again what the bill is about. It places on a statutory footing the investigative powers currently used by the police and other agencies, carefully regulating their use and offering safeguards to the public. The bill underlines the Executive's commitment to a secure Scotland—a Scotland where individuals and communities are free from crime and the fear of crime—while at the same time furthering our commitment to an open and fair society.
This legislation will protect Scottish citizens. The bill safeguards the use of valuable techniques already used by public authorities for the security and protection of our community. Unfortunately, modern Scotland has modern criminals. As Gordon Jackson said this morning, there are a lot of bad people out there. As he also pointed out, they are sophisticated bad people, using sophisticated criminal methods. Often surveillance techniques and the use of informants or undercover police officers offer the only realistic means of successfully tackling serious crime. The Regulation of Investigatory Powers (Scotland) Bill will play a vital role in safeguarding the use of those important techniques.
It is important just for a moment to reflect on the types of crime that the police are dealing with here: crimes such as drug trafficking, which was mentioned at question time, extortion rackets and murder. As I said in the stage 1 debate, surveillance last year played a key role in 109 arrests by Scottish police forces, 99 of which related to drug trafficking. Surveillance continues to play an important role in police operations. Surveillance operations have led to Scottish police forces and the Scottish Crime Squad making a total of 147 arrests so far this year, 119 of which were for drug offences.
Just as important, the bill represents a significant step forward in the protection of civil liberties and human rights. It will ensure that the use of covert surveillance techniques is compatible with the European convention on human rights. In doing so, it will for the first time provide a legislative framework for the use of surveillance techniques in Scotland. It will protect Scottish citizens' rights to respect for their private and family life, their home and their correspondence.
Despite what some of the more lurid newspaper articles have suggested, the bill is not a statutory embodiment of Big Brother—far from it. It will ensure that surveillance techniques are used only for specific and necessary reasons, that they are proportionate to the criminal activity in question and that they are properly authorised. Furthermore, for the first time, the use of such techniques will be subject to independent oversight and there will be access to a tribunal for those who believe that they have wrongly been the subject of investigation.
As members will be aware, the bill is the Scottish counterpart to the UK Regulation of Investigatory Powers Act 2000. There are clear operational advantages in having similar regimes north and south of the border. The similarity between part II of the United Kingdom act and the Regulation of Investigatory Powers (Scotland) Bill is no coincidence. There are occasions on which a similar approach throughout the United Kingdom is both sensible and practical—this is such an occasion.
As we know, criminals pay no heed to national borders. Therefore, it is important that the UK act and the Scottish bill fit together in order to provide a UK-wide framework. We can be sure that criminals would be quick to utilise any gaps or loopholes in the legislation. The Home Office and the Scottish Executive have worked closely to co-ordinate and formulate joint policies in this respect. Those policies reflect Scottish interests as well as those of England and Wales.
As well as ensuring compatibility between the UK act and the Scottish bill, we had to resolve certain complex legal issues of legislative competence. As a result, the bill was delayed and had to proceed through Parliament quickly for it to be in force in time for the full commencement on 2 October this year of the Human Rights Act 1998.
I record my thanks to Roseanna Cunningham as convener of the Justice and Home Affairs Committee and to the other members of the committee. Today and during stage 2—Angus MacKay advises me—the committee members have shown considerable interest in and knowledge of the matters under discussion. They have helped to ensure that the bill has proceeded in such a way as to meet the requirements and hopes that we hold for it. I thank the committee clerks and officials for their co-operation in reacting to short deadlines. I realise that, at times, the bill has diverted the Justice and Home Affairs Committee from its own business and I would like to thank everyone involved for their patience.
I must also express my gratitude to my colleague Angus MacKay. My role as Deputy First Minister, particularly during the absence of the First Minister, meant that I was unable to lead the bill through all its parliamentary stages. I thank Angus MacKay for the work that he has done in that respect.
I would also like to thank the officials in the justice department, who have done a considerable amount of work—not least in liaising with the Home Office—to ensure that the bill meets the pan-United Kingdom approach needed to ensure its effectiveness.
The Regulation of Investigatory Powers (Scotland) Bill is an important piece of legislation. It protects the safety of Scotland's citizens as well as their freedom and privacy. It strikes the proper balance between crime prevention and safeguarding the rights of individuals.
I move,
That the Parliament agrees that the Regulation of Investigatory Powers (Scotland) Bill be passed.
As a member of the Justice and Home Affairs Committee, I would like to begin by thanking the clerks for their tremendous efforts in assisting the committee and in ensuring that the bill proceeded on time.
I have some concerns about the way in which the bill was rushed through Parliament, as that limited the amount of time that we had to consider various of its provisions. As the Deputy First Minister has said, the need for the rush was to ensure that the legislation was in place for 2 October. However, several members have raised concerns about the timetable. During the stage 1 debate, Robin Harper told us that several organisations were unable to give evidence to the committee because the time scale for evidence taking was too short to allow them to be fitted in. That is a matter of regret.
When the bill was first introduced, like many members I was rather suspicious of it. I am on record as saying that any bill that has the abbreviation "RIP" should be treated with suspicion—particularly when it deals with surveillance. However, as the Deputy First Minister has outlined, the intention of the bill is to achieve a balance between civil rights, human rights and the ability to carry out surveillance. The bill achieves that to some extent, although I have reservations about several areas.
Before I started to consider the bill, I had no knowledge of the process of undertaking surveillance. I have been on a steep learning curve over the past couple of months, particularly in relation to how the legislation applies to the surveillance world. I am not sure whether that has reduced or heightened my suspicion of the way in which surveillance is undertaken. I regret that it may be the latter.
The Deputy First Minister mentioned the constructive manner in which members of the Justice and Home Affairs Committee and the political parties acted in dealing with the bill to ensure that it was passed on time. The SNP has acted constructively in ensuring that the bill passes with the best scrutiny possible within the limited time that we have had. The Executive has not experienced the same problems that its counterparts in Westminster did during the passage of the UK Regulation of Investigatory Powers Bill.
There is general recognition that this bill regulates an area that was formerly unregulated. That is to be welcomed. As I outlined to the minister, there are concerns about aspects of the bill. I regret that amendment 8, moved by Christine Grahame, was not accepted. At some point in the future, there is likely to be a case against the bill regarding compliance with the European convention on human rights. Time will tell.
As I said, the SNP supports the bill. We do so in the spirit of creating a more open and accountable society.
The Conservative position on the bill has not altered greatly over the summer months. Once again, I thank the convener of the Justice and Home Affairs Committee, Roseanna Cunningham, for her stewardship of the evidence presented to the committee, and of course I thank our marvellous clerking team, the hardest worked in the Parliament.
The introduction of statutory guidance on the policing of investigatory powers has received cross-party backing. Today, we have stated our position on many of the issues of contention, particularly those involving the police. Let me restate it: as Conservatives, we are prepared to give the police whatever they require to do the job responsibly.
There was a need to introduce the bill to ensure a consistent statutory regime throughout the United Kingdom in relation to investigatory powers when ECHR becomes applicable next month. Scotland's position will be decided today. We recognise that a commonsense approach to the complex issue of organised crime, which recognises few if any borders, is required and that, as part of a United Kingdom, Scotland must play its part in the fight against such activity. We must focus our attention on the organised networks of serious criminals if we are to make a difference in our communities.
Organised crime continues to flood our streets with drugs, challenging the ability of our police to keep order. Any regulation of investigatory powers must therefore put the right of the individual and society to be free from fear of intimidation and drugs before the rights of any individual involved in illegally disrupting lives through the pursuit of organised criminal activity.
Police representatives want the bill in order to ensure compliance with ECHR. In implementing the bill, we should, as far as possible, eliminate the imposition on the police of time constraints that do not currently exist. After all, we must not inhibit their ability to act quickly on our behalf, particularly in this information technology age. Criminals have been quick off the mark in using computer technology to their advantage and, as many members who have served in a variety of legal capacities will know, computers can do an awful lot in the time that it takes to get a warrant signed.
We must all ensure that, when time is of the essence, ordinary investigating officers are empowered to conduct their inquiries as they see fit, without reference to senior officers; otherwise, situations may arise where the criminals are home and hosed by the time an investigating officer has tracked down a senior officer to obtain authority to approve covert surveillance.
Covert activities are highly expensive and the police will not be enter into them lightly. Parliament need not fear that the bill will provide the police with greater scope to undertake costly surveillance. We have been assured by all those who presented evidence—including the Law Society of Scotland—that, far from increasing covert surveillance operations, the bill will restrict police activity in that field.
What we hope to clarify today for the police without any dubiety is a definition of what constitutes a crowd. As things stand, every time I meet other members for a cigarette at the back of the office—and one meets a very entertaining type of person there—collectively we could constitute a crowd that may cause serious concern. Rather than transferring state secrets or quantities of drugs, we exchange pleasantries and share lighter moments, some of which spilled into our consideration of the bill this morning. Who would have thought that this bill could have caused so much laughter? People will be queueing up to get on our committee soon.
Of course, the Justice and Home Affairs Committee was subject to time constraints when considering the draft bill. The Association of Chief Police Officers in Scotland assured us that the legislation would not incur an additional administrative burden. I hope that, if that proves not to be the case, the Executive will be sympathetic.
Our democracy is based on a parliamentary structure that ensures that expert advice is given to parliamentarians so that amendments can be lodged to improve legislation. We are indebted to those who sought to guide our thoughts. Compliance with the European convention on human rights is desirable—the bill will be of assistance. I look forward to supporting the bill at decision time.
In view of the significant airing of the bill this morning, I ask members to keep their remarks tight.
I do not intend to take up too much time, as much of what needs to be said has already been said.
Although the bill is serious, I would like to pick up Lyndsay McIntosh's point about levity in the committee. My abiding memory of the stage 2 debate is Michael Matheson's admission that 10 is a large crowd for Firhill these days. However, Partick Thistle seems to have fallen on hard times, as his amendment this morning suggests that the number is down to six.
It should be remembered that the bill and the parallel UK legislation are primarily aimed at ensuring that we are ECHR compliant. However, the bill should not be passed because of that; it should be passed because it is a good thing.
The most important aspect of the bill is that it does not provide any new powers for the police to carry out surveillance on members of the public or to conduct entrapment operations. Moreover, it does not give new powers to any other public authority. It simply puts into a statutory framework what is already happening. I welcome that.
The bill attempts to bring covert surveillance out of the shadowy world that it inhabits, to create an environment where surveillance is subject to statutory regulation and to allow anyone who feels that they have been the subject of unwarranted surveillance the right of appeal to a newly created tribunal. We had extensive debate this morning on how someone who had been blissfully ignorant that they had been the subject of surveillance might try to take matters up with the tribunal.
As I said morning, I acknowledge the considerable efforts of Christine Grahame, who, over a long period, has tried to address the difficult issue of how we balance the civil liberties of our citizens with the need of the state to detect and prevent crime. However, as I also said, the more I considered the implications of the issue, the more I could accept the Executive's position, which was articulated clearly by the Deputy Minister for Justice.
I sincerely hope that the bill is ECHR compliant. Given the work that has been put in not only by members of Justice and Home Affairs Committee but by a number of other members who have taken an interest, I believe that the bill achieves what it set out to achieve: it protects the civil liberties of our citizens while ensuring that the state can carry out legitimate operations.
The Regulation of Investigatory Powers (Scotland) Bill is an important piece of legislation—it is probably more significant than is generally realised. For the first time, there will be a statutory framework for the regulation of the powers and activities of investigatory authorities. It is the sincere hope of the Scottish Liberal Democrats that the bill is compatible with the European convention on human rights; the work of the Justice and Home Affairs Committee has gone a long way towards ensuring that it is.
I echo the tributes that have been paid to the convener of the Justice and Home Affairs Committee, to members of that committee, who put a great deal of effort into scrutinising the bill and, in particular, to the clerks, without whose efforts the bill would not have progressed so effectively.
I appreciate that the bill was introduced with a challenging timetable, but it was important to get it on to the statute book before October, when the Human Rights Act 1998 comes into force.
The bill has been improved today, particularly by the removal of the catch-all power for ministers to authorise surveillance, which was an important and welcome concession by the Executive. I congratulate Michael Matheson on lodging that significant amendment.
In time, we will need to come back to this legislation—perhaps it was too ambitious to think that we would get everything right first time. I am sure that, in the course of future events, we will find some deficiencies in the bill. As was apparent in committee, I have reservations about two sections in particular.
First, I have reservations about section 26, on the saving for lawful conduct, as I fear that some people might use that provision as an excuse not to apply the act as they should. However, if that should occur in practice, we would soon find out and we could revisit that section.
Secondly, I had, and continue to have, considerable concerns about the limitations on civil liability in section 2. I understand and accept what the minister said to me in his letter, but I still suspect that the limitations imposed in section 2 make it more difficult to claim civil liability when injury or loss to a third party takes place. Ranged against an individual who may wish to make a civil claim is the apparatus of the state. In those circumstances, to restrict or limit liability in the way that has been suggested is unwise. However, I am prepared to wait and see whether there are problems when cases are brought. If there are, I hope that we will revisit section 2.
Overall, it is important that we pass the bill. It is a good piece of legislation and brings into a statutory framework what has been custom and practice for some time. If problems exist with the bill, they lie in the area of complaints and redress. The codes of practice contain sections on complaints and redress: there is a process for complaints, but precious little discussion of redress. If at all possible, Parliament should consider that area when draft orders or statutory instruments are introduced on the codes of practice.
However, I welcome the bill. I hope that the Parliament will pass it; certainly, my party will vote for it. I commend the bill to the chamber.
I agree with Euan Robson that the bill is a good piece of legislation. At the risk of another bout of Justice and Home Affairs Committee members patting ourselves on the back, I will say that I think that we have done a good job on the bill. We questioned, we pushed, we queried and, I suspect, at times we annoyed. At the end of the day, we improved the bill.
From the beginning—this has been said over and again—the debate on the bill has always been about trying to strike a balance, which has not been entirely easy. I come back to what was said at stage 1. We heard evidence from Professor Alan Miller, who represents the civil liberties lobby, and from the police. Both conceded that the bill is, by and large, a good piece of legislation—that unanimity also exists in this chamber. That suggests to me that, although nothing is perfect, we have managed to strike a balance.
Like Euan Robson, I am particularly grateful to the Executive for taking out the catch-all provision. We did not like it, as it was open to abuse. We were conscious of the point that Christine Grahame was making—very well—about disclosure, and one way of trying to improve the balance was to do what the Executive did and remove the catch-all provision.
I am particularly interested that that means that we have followed a different pathway from the one followed at Westminster. In some ways, I see that as a good thing, but not because we should be trying to do things differently from Westminster for the sake of it. It is worth making it clear that, although certain matters may be agreed elsewhere, we have our own views and have insisted on acting on them. That is a good example of how the process of devolution is meant to operate and, on this occasion, has been seen to operate.
The bottom line is that the bill is not about giving draconian powers to law enforcement agencies. Some weeks ago, I read a newspaper article suggesting that it was some kind of Big Brother snooping exercise; it is the very opposite. It is taking what has happened since police surveillance operations began and saying that now is the time to put it into a proper statutory framework. It is now time to legislate and to ensure that surveillance is properly governed and controlled by security commissioners appointed by the Scottish Executive. That is a good development, as the framework will give protection to the citizen rather than draconian powers to the law enforcement agencies. The bill strikes a balance between civil liberties and the need to deal with the sort of things that the law enforcement agencies come up against. Along with almost everyone in the chamber, I would commend the bill to Parliament.
In the stage 1 debate, I made a liberal—with a small "l"—speech expressing concern about some of the civil liberties aspects of the bill. I still have some of those concerns, although I accept that the Justice and Home Affairs Committee, of which I am not a member, has worked hard, as have the ministers, and I accept that the bill is probably okay.
I am still concerned that a chief constable up whose nose the Campaign for Nuclear Disarmament, or some radical group of socialists or liberals, gets might be induced to use the bill's powers wrongly. I was assured at stage 1 by the Minister for Justice that the powers would not be used against people like me, but there is still an issue to be considered.
I have a positive suggestion that might apply to this and other bills. We should have a routine system whereby, every two years after a bill such as this has taken effect, we should study how well it has done and see whether it can be improved. I have no doubt that the committee did very well, but none of us can entirely foresee the future or how the courts will interpret our efforts at legislation. It might therefore be useful to build into this sort of bill an administrative procedure for re-examining every now and then how well the legislation is doing.
Nevertheless, on the basis of all the reassurances that we have received, I am willing to vote in support of the bill, although one always has one's liberal worries.
I am sure that Mr Gorrie accepts that the surveillance commissioner has to make an annual report to the Westminster Parliament and to this Parliament. That will ensure that not only is there oversight but that oversight is reported on.
Atypically, Phil Gallie has been slow to press his request-to-speak button, but I shall allow him to make a final point before I call the minister to wind up.
Thank you very much, Presiding Officer. I apologise for my failure to push the button.
In visiting hostelries around the country, I have never found regulation of investigatory powers to be the key issue of the day, but we politicians get our enjoyment in the strangest of ways—believe it or not, I have enjoyed taking this bill through the committee and through the Parliament.
I add my compliments to those that have been passed to others. The passage of the bill has been serious, but it has had its fun moments. The bill was forced on the Parliament through incorporation of ECHR and it runs in parallel with the UK bill. I feel sure that the bill will receive the approval of Parliament. I would like the minister to inform the chamber when he expects the bill to be implemented. Will it be implemented after the bill south of the border goes through Westminster, or will it be implemented immediately?
Euan Robson talked about legislation being right first time. This Parliament—from Henry McLeish's point of view—looks to industry and business to get things right first time, so there is a duty on this Parliament to get things right first time. When legislation is rushed through, there is a risk that we will not get it right, and we have to accept that this bill has been rushed. However, the Justice and Home Affairs Committee has had a fair amount of time to examine the issues. Donald Gorrie suggested that we should come back to reconsider the bill. With bills such as this, which have been rushed, it may be worth looking back and reflecting.
I perennially seem to end up at the end of such debates having the role of saying, "Thank you for coming, good night and have a safe journey home." Members will be pleased to hear that my speech will not be much longer than that, but I will briefly pick up one or two points.
As has been acknowledged, the bill has had to proceed through Parliament very quickly in order to meet the deadline of 2 October. In direct answer to Phil Gallie's point, the UK act is already enacted—it has passed through the Houses of Parliament. Our deadline is 2 October so that we comply with the requirements of ECHR and the Human Rights Act 1998. That is why we have moved so quickly on the legislation.
It is genuinely and truthfully thanks to the hard work of the members, clerks and officials of the Justice and Home Affairs Committee and the Subordinate Legislation Committee that the bill has, despite the pace at which we have moved, received proper scrutiny at each of the parliamentary stages. That scrutiny is an essential part of the legislative process. I want to place on record my gratitude to the members of those committees—especially the Justice and Home Affairs Committee—for their hard work and tolerance. I am sure that the bill has been improved by the changes that have been made—for example, the Executive's withdrawal today from its position on the catch-all power.
On behalf of the Executive, I also thank the representatives of the Law Society of Scotland, the Association of Chief Police Officers in Scotland and Professor Alan Miller of the Scottish Human Rights Centre, all of whom offered their advice as witnesses during the stage 1 consideration of the bill.
The bill has had proper consideration, notwithstanding the odd comment about the pace at which it has moved through and the need to address seriously the issues raised. At each stage, we have comprehensively covered all the issues. Not all members may be satisfied with all the outcomes, but we have given the issues a thorough airing.
As Phil Gallie rightly pointed out, we have had our lighter moments. I was amused by Dennis Canavan talking about a small number of people trying to do bad things—that was quite interesting coming from Dennis. We have witnessed the repeated appearance of Euan Robson's nasturtiums, which members of the Justice and Home Affairs Committee will recall from stage 2. Today, we had the spectacular introduction from Christine Grahame of a new form of superhero—the binoculars-in-the-lupins man. I am not quite sure how he would get that on the front of his vest, but he represented a moment of light entertainment.
All in all, I think that at the end of today, when—as I hope—Parliament approves the bill, we will have done a good job of work and produced a good piece of legislation, which will, when all is said and done, balance civil rights with the requirements for law enforcement in a way with which we can all be comfortable. I ask members of the Parliament to support the motion to pass the bill.
We have made good progress on the bill today, so I am looking to the Minister for Parliament to see whether he can help to move business forward.
I seek permission to move a motion without notice.
I am minded to accept such a motion. Is it agreed that we accept a motion without notice?
Yes.
Motion moved,
That decision time be moved to 16:10.—[Mr McCabe.]
Motion agreed to.