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The first item on today's agenda is subordinate legislation. We have two instruments before us: the Regulation of Investigatory Powers (Notification of Authorisations etc) (Scotland) Order 2000, which must be decided under the affirmative procedure; and the Regulation of Investigatory Powers (Prescription of Offices, Ranks and Positions) (Scotland) Order 2000, which is subject to the negative procedure.
By way of introduction, I should say that the Subordinate Legislation Committee considered the affirmative instrument on 24 October and had no comments to make on it. This committee, as the lead committee, must report to the Parliament by 20 November on that instrument. The position is that the instrument can be made, and does not have to be approved by the Scottish Parliament before being made, but it ceases to have effect if it is not approved within 40 days of being made.
The whole process will be reviewed by the commissioners. If they feel that the reasons demanded by the order do not provide them with the information they require, they will report that to Scottish ministers and there will be an opportunity to make changes. In the case of renewal, however, there has to be clear information about why the renewal is necessary. For any individual case, the commissioners could withhold the authorisation if they felt that the reasons were not sufficient.
Moving on to the second instrument, I was slightly concerned about the designation of who was able to authorise directed surveillance in urgent cases. I notice that someone as low as the rank of inspector can do that, which seems a fairly junior rank in the police force. Can you explain the reasoning behind that?
The key is practicality. Under the order, inspectors are allowed to authorise directed surveillance or the use of covert human resources only when it is not reasonably practical to get authorisation from a more senior officer. That is a well-established test with regard to the urgency of the case. Our concern is that urgent operations should not be thwarted because an officer of superintendent rank is not available.
This question may reveal my ignorance, but is there still a rank of chief inspector between inspector and superintendent? I think that there was a proposal at one stage to abolish that rank.
The Sheehy report suggested abolition. I do not think that there is a rank of chief inspector now.
I confess that I do not know the answer to that.
I was just a bit worried, because if the most senior officer available to authorise a renewal was an inspector, that would mean that an inspector was the most senior officer available full stop. People might have concerns about wider aspects of policing if nobody above the rank of inspector could be found.
That is a slightly different point about the way in which police are deployed operationally. However, the fact that the order has been derived from wide consultation takes account of the actual circumstances in which a decision might have to be taken. For example, an authorisation might have to be taken in the middle of the night, at the weekend or during a holiday period, when an inspector would always be available.
I have a couple of questions about the affirmative instrument. Will all the documentation on notices of cancellation and renewals of authorisation be available to a tribunal should a party proceed to a tribunal?
It will be. Part of our reasoning was that the act and the order should be robust enough to resist challenge under the European convention on human rights.
How long will that documentation be retained? I do not recall whether there is a time limit for proceeding to a tribunal, but I do not think that there is.
There is not a set time limit, but the commissioners would be required to recommend how long the documentation should be retained.
Do you have any views on that? Are we talking about 10 years, for example?
The decision or recommendation that would come from the commissioners is one of the aspects of the Regulation of Investigatory Powers (Scotland) Act 2000 that is being consulted on at the moment. At present, I do not have a view on that, but consultation is under way.
Will you come back to us with that?
It would be open to the committee to ask about that at a future date.
Thank you.
My point follows on from the question about inspectors. Would not it be the case that, in rural communities, there might be circumstances in which inspectors were the only people who were immediately contactable?
That is absolutely the case and it is a good example of the balance between practicality and the desire to have proper authorisation without hindering what are often important surveillance operations.
A further point on the negative instrument concerns timing. Members have been given the letter to the Presiding Officer about the fact that the instrument breached the 21-day rule, which says that an instrument should not come into effect fewer than 21 days after it is laid. This instrument came into effect three days after it was laid because there was a deadline of 2 October when the European convention on human rights came into effect. That is a short time scale. The fact that the date of 2 October was known in advance leads us to ask why the legislation was not ready soon enough to allow any orders to meet the 21-day deadline prior to 2 October.
Members of the committee will be more familiar with the time scale of this piece of legislation than I am. My understanding, however, is that, in an attempt to maximise the time that is available for parliamentary scrutiny, the bill was not passed by the Parliament until 7 September and could not come into force until notifications were received from the Advocate General, the Lord Advocate and the Attorney General that they did not intend to refer the bill to the judicial committee of the Privy Council, which took three weeks. It was only at that point that the act could come into effect and secondary legislation made. The order was therefore laid on 29 September.
I think that the Advocate General and the other law officers have 28 days to refer the matter to the judicial committee. Obviously, they can indicate to the Presiding Officer almost immediately, if they choose, that they do not intend to refer it. Is that the case?
That is the case. However, as with all legal opinion, it takes as long as it takes. In this case, it took some three weeks.
That may be something that can be considered later.
Given our discussion already, I am happy to move the motion.
That the Committee recommends that the Regulation of Investigatory Powers (Notification of Authorisations etc.) (Scotland) Order 2000 be approved.
Motion agreed to.
Unless anyone wishes to make any points, I suggest that we simply take note of the second instrument.
I trust that your appearances before this committee will not always be as easy as that, Iain.
Is that a promise, Mr Gallie?