Regulation of Investigatory Powers Bill

– in the Scottish Parliament at 2:30 pm on 6th April 2000.

Alert me about debates like this

Photo of Tommy Sheridan Tommy Sheridan SSP 2:30 pm, 6th April 2000

On a point of order, Presiding Officer. Yet again, you have decided not to select my amendment to the motion. You will be aware that since June 1999, I have lodged 14 amendments, only two of which have been selected. I ask you to take a period of self-reflection or to reflect with the Parliamentary Bureau, so that after the recess you can assure me that that pattern will not be repeated, given that we are hoping to aspire to a new politics in Scotland.

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

I am all for self-reflection, but if two out of 14 of your amendments have been selected, I would say that you are doing pretty well. I am always willing to reconsider. I select amendments on their merits rather than on a statistical basis, and I do not give reasons for the selection.

Let us proceed with the debate on the Regulation of Investigatory Powers Bill.

Photo of Jim Wallace Jim Wallace Liberal Democrat 3:34 pm, 6th April 2000

The Regulation of Investigatory Powers Bill was introduced in the Westminster Parliament on 9 February and had its second reading on Monday 6 March. It is currently being considered in committee in the House of Commons.

There have been some misleading comments about the bill. It is worth stressing a few points before dealing with the substance of the Sewel motion. The Regulation of Investigatory Powers Bill does not bring into being a surveillance society, nor does it unleash wide-ranging new powers for the police. The bill puts in place statutory controls and checks for a range of policing techniques that have been used for many years. It introduces independent oversight of the use of those powers. In short, it enhances civil liberties by placing the use of those powers on a statutory basis.

The Scottish bill will balance carefully the effectiveness of law enforcement techniques with the rights of the citizen, as enshrined in the European convention on human rights. Indeed, for the first time, those law enforcement techniques will be properly regulated by law and independently supervised, and remedies will be available to people who believe that they have been wrongly treated through their use. The Scottish bill will be introduced after Easter, with the intention of ensuring that it is in place by 2 October, when the Human Rights Act 1998 will apply to the activities of the police.

I also intend to introduce a separate bill to deal with a number of ECHR issues. First, a written parliamentary answer will be published this afternoon indicating our proposal to amend certain provisions of the Criminal Procedure (Scotland) Act 1995 in relation to bail. Secondly, we intend to amend the District Courts (Scotland) Act 1975 in relation to justices of the peace and certain prosecutions in the district court. Finally, we intend to create a new judicial office of part-time sheriff. I hope to introduce the bill as soon as possible after Easter.

On the motion before Parliament and the Regulation of Investigatory Powers Bill itself, although the vast majority of law enforcement activities are undertaken by the police, a number of other agencies are involved, some of which operate on a Great Britain or UK basis. They may co-operate with each other in sharing intelligence or in particular operations.

The Scottish Executive and the Home Office have therefore co-operated closely on the Regulation of Investigatory Powers Bill and its Scottish counterpart. We have been keen to ensure that there are no gaps between the two regimes that could be exploited by those responsible for serious crime.

The bills cover matters that are clearly reserved, for example, the police in England and Wales; or clearly devolved, for example, the police in Scotland. However, they also cover bodies that are reserved but have functions that include the prevention or detection of crime in Scotland, which is devolved. This period of consideration has shown that although the subject matter of the Regulation of Investigatory Powers Bill contains areas where legislative competence is perfectly clear, there are other areas where the legal issues become more complex and subject to interpretation, or where the question whether the Scottish Parliament has legislative competence depends on the way in which the legislation is framed.

The Executive has been guided by several objectives in framing its legislation. I want to say a brief word about them before I refer to the areas of the Regulation of Investigatory Powers Bill where we seek the consent of Parliament.

One key objective has been to ensure that the legislation is in place before the Human Rights Act 1998 comes into force on 2 October. A second objective is to ensure that robust legislation is put in place. A regime that was susceptible to challenges in the courts on the ground that the Scottish legislation was not competent to regulate the activity or the body in question would be failing the public and law enforcement agencies. We have therefore taken the view that, in limited aspects, it would be more sensible to include the relevant provisions in the UK legislation, where there can be no such susceptibility to challenge. Questions would be asked in Parliament if we allowed our bill to be vague or if challenges could be mounted against the competency of what we had done. If we include such provisions in the UK legislation, any such challenges will be put beyond doubt. Finally, there are advantages in providing for a similar approach throughout the UK.

I will now refer to the particular areas of the Regulation of Investigatory Powers Bill on which we are seeking the endorsement of the Parliament. I will deal with part II of the UK bill first, as it covers the ground where we will seek to introduce our own, similar legislation here in Scotland.

Part II specifies public authorities that may employ covert investigative techniques. Those are English police forces, HM Customs and Excise, the armed forces and their police services, the Ministry of Defence police, the British Transport police and the intelligence and security services. While the functions of some of the authorities on that list, such as the armed forces and the intelligence services, are reserved under the Scotland Act 1998, the position of others is less clear.

For example, the conduct and management of HM Customs and Excise, a UK public authority, is a reserved matter. However, its involvement in the prevention or detection of crime is generally a devolved matter. The legislation that we are considering covers both those aspects.

That is precisely the type of grey area that could give rise to challenges in the courts. Therefore, we believe that the better course is to cover in the Scottish bill only the bodies where there is no potential for challenge—the National Criminal Intelligence Service, in so far as it operates in Scotland, and the Scottish police forces.

There is agreement with the UK Government that when a UK public authority operates in Scotland against crime and ministerial authorisation is required, Executive devolution arrangements will provide that Scottish ministers will sign the authorising warrant and will need to satisfy themselves that any operation is in accordance with the law.

The second area that I want to mention relates to part I, chapter 2 and to part III of the Regulation of Investigatory Powers Bill. Part I, chapter 2 of the bill deals with enabling law enforcement agencies to gain access to data relating to the frequency, direction and duration of specified communications, rather than to the content of the communication. Part III of the bill provides a power to demand the decryption of encrypted material for specified purposes from a body or person who is believed to hold the decryption key.

The approach to those issues adopted in the Regulation of Investigatory Powers Bill means that the relevant provisions fall within the reservations in the Scotland Act 1998, specifically in schedule 5 to the act, paragraph B8, on the interception of communications, and paragraph C10, on telecommunications including internet services and encryption. The Executive's view is that it might have been possible to draft provisions dealing with those issues so that they were within the legislative competence of the Parliament, in particular, if the provisions were drafted so that the focus was on the toolkit needed by the Scottish police to deal with crime.

However, we take the view that the legislation will be best dealt with within the UK bill. Not only does that course remove uncertainties relating to legislative competence, but it will enable the Scottish police to access the technical support systems that will be established in line with the powers in the bill. The technical expertise required in such areas will in many cases be beyond the resources of any one police force.

I refer now to the issue of dealing with complaints. It is the right of individuals to have recourse to redress if they believe that they have been improperly targeted with investigatory methods regulated by the bill. At the same time, the sensitivity of the issues that might be involved requires special handling, and the UK bill proposes a special tribunal to balance those requirements.

It is within the competence of this Parliament to provide for such a tribunal to deal with complaints arising under the Scottish bill. However, we believe that there are sound reasons why that would be better done within a UK-wide system. There are likely to be few cases in Scotland, but it will be important for the tribunal to accumulate a breadth of experience in what is a sensitive and specialised area. That will be particularly important from the point of view of guiding the police on the limits of their powers under the legislation. It therefore makes sense for this Parliament to ask the UK Parliament to legislate on its behalf in this area. Scottish ministers will be consulted on the rules governing operation, and the legislation provides for representatives from the Scottish legal system to be members of the tribunal.

I wish to draw to the attention of members two amendments, which will be proposed in the Regulation of Investigatory Powers Bill, that will affect Scotland. The details are set out in paragraphs 15 and 16 of the memorandum, which has been made available to members. I hope that members can agree that those technical amendments would be best dealt with in the UK bill. The memorandum also sets out what we intend to do in relation to oversight by the commissioners. That is not a matter for the Sewel convention, but members may wish to take note of it at this stage.

In conclusion, I emphasise that by far the largest part of the activities involving undercover surveillance and the use of related techniques in Scotland will be covered directly by Scottish legislation. In addition, where ministerial authorisation for criminal investigation is required, it will be given by Scottish ministers under the UK legislation. That represents a pragmatic approach, designed to ensure that we have robust legislation that protects individuals' rights and enables those responsible for law enforcement to use effective techniques in the fight against serious crime.

I move,

That the Parliament endorses the principle of ensuring that the use of investigatory techniques is compatible with the European Convention on Human Rights, as set out in the Regulation of Investigatory Powers Bill, and agrees that the provisions within that Bill that relate to devolved matters should be considered by the UK Parliament.

Photo of Roseanna Cunningham Roseanna Cunningham Scottish National Party 3:45 pm, 6th April 2000

I question how many members of this Parliament have a full understanding of precisely what they are voting on in regard to the motion. The members of the media who have contacted me have uniformly expressed extreme frustration at the Executive's unwillingness to be at all forthcoming about its intentions on intrusive surveillance.

As far as the public domain is concerned, it seems that, until today, the only announcement was the minister's comment last month that

"the Scottish Executive is about to introduce a Bill which will provide legislative cover for the agencies involved in operations involving intrusive surveillance techniques."

Otherwise, there has been no fanfare, no further press release and no further information.

Photo of Jim Wallace Jim Wallace Liberal Democrat

Does Roseanna Cunningham actually read written answers, including the one that I gave on 17 November, and the one that the First Minister gave earlier that month?

Photo of Roseanna Cunningham Roseanna Cunningham Scottish National Party

I am fascinated by the minister's intention to use that format from now on to make important announcements which, presumably, he wants to keep as quiet as possible. Members of the press have had an extremely difficult time over the past week—I know that because they have told me—trying to find out anything about the Executive's intentions on what it will do in this Parliament about intrusive surveillance.

As the minister said, a bill has been going through Westminster, although it had its second reading only on 6 March. It was introduced in February. It is instructive and a good thing about this Parliament that it is only the advent of the Scottish bill that has generated press interest and scrutiny in Scotland.

I make no comment on whether that should or should not have been the case. It is, I freely admit, a lesson in not taking our eye off the ball in regard to Westminster. However, the coverage that both the Westminster bill and the proposed Scottish bill have now received means that this Parliament should tread very carefully indeed.

We already know that the incorporation of the European convention on human rights in Scotland, especially given that it concerns the actions of this Parliament itself, goes a good deal further than it does with regard to Westminster, which stays stubbornly thirled to the outdated doctrine of parliamentary sovereignty. This Parliament is in a more modern vein, and cannot afford to be as quite as cavalier as Westminster. For that reason alone, we should be protective of the rights of the people of Scotland, and get the maximum advantage of the incorporation of the ECHR, and not agree willy-nilly that Westminster should be allowed to legislate on devolved matters.

Despite the doom-laden prophecies in the run-up to May last year, the Scottish National party has taken a responsible attitude to previous Sewel motions. Where we have agreed, there has been very good reason to agree. I recall my comments in the debate on the motion on the Sexual Offences (Amendment) Bill, regarding the equalisation of the age of consent. That was a Sewel motion on which we registered our agreement. I said then:

"as a matter of principle, the SNP does not want Westminster to continue to legislate in devolved areas, which unfortunately seems to be happening almost routinely, not just on this subject, but on others that concern us rather more."—[Official Report, 19 January 2000; Vol 4, c 227.]

For that motion and that vote, it was perfectly clear that not to have agreed that Westminster could proceed would have set back the projected equalisation in the age of consent by years. The legislation that we were discussing had begun its life before the Scottish Parliament's own birth. An exception could be made at that time, for that reason.

At the time of that bill, the Executive was also keen to point out in its memorandum that

"it would remain open to the Scottish Parliament if it so wished to amend or repeal in future any Scottish provisions enacted by the passage of the Bill."

I note with some amusement that a similar reassurance is missing from today's memorandum.

Why should we also make an exception for this legislation? The truth is that the Executive has given no real reason why this Parliament should concede that Westminster can simply go ahead and legislate for us this time. I read the memorandum accompanying the Regulation of Investigatory Powers Bill. Paragraph 8 states:

"It is clearly desirable from the point of view of simplicity that a body that operates throughout the UK should be regulated by a single statute rather than being required to switch to a different regulatory regime".

All I can say is: really? One wonders how on earth we have survived for the past 300 years with two distinct legal jurisdictions on this island.

A debate about the merits of the bill, either in whole or in part, is not appropriate. Nevertheless, we would all be interested to hear from the minister whether there has been any substantive consultation at a ministerial level on the provisions of the bill. If there has been, what form did it take? After all, strictly speaking, we are not being consulted on the bill today.

The Law Society has suggested that, in issuing interception warrants and authorising disclosure of communications data, provision should be made for consultation with the Advocate General for Scotland when the basis for interception is in the interests of state security or the safeguarding of the UK economy. On the other hand, it suggests that consultation with the Lord Advocate would be appropriate when the interception is justified for the purpose of detecting or preventing serious crime. Has any discussion taken place on those lines? Has any thought been given to those, or similar, suggestions?

The late introduction of the bills that the minister has spoken about today and the expectation of fast turnround times put this Parliament's committee system under considerable stress. I suppose that, as convener of the Justice and Home Affairs Committee, I could take the view that, with this motion, the Executive is being solicitous of the work load of my committee. Today might be about the Executive doing whatever it can to reduce that work load, including the option of using Westminster as a spill-over Parliament. Is that the reason why we are discussing this matter? Is the Scottish Parliament so busy, and does Westminster have so little to do, that any excuse to send things south must be grabbed? Excuse me if I doubt that.

Even if my tongue were not in my cheek on that point and it were true, it would have serious implications. I mentioned that it is instructive that only the advent of the Scottish bill generated the press and public scrutiny that was deserved. That speaks volumes for our Parliament and is a good reason why we should not agree to the motion. The motion is, predictably, bland. It is couched in terms that suggest that the provisions of the bill are entirely benign. That may be so and the minister tells us that it is so. However, recent coverage suggests otherwise and the debate in Scotland will focus on the implications of the bill, particularly the suggestion that it will legitimise activities that are not legitimate at present.

Concerns are being expressed in Westminster by the Liberal Democrats and the Conservatives. Given that a Liberal Democrat minister is pressing the legislation here, it is of considerable interest that at Westminster, a colleague of the minister, Simon Hughes, described the bill as

"going too far in favour of the state and against the individual."—[Official Report, House of Commons, 6 March 2000; Vol 345, c 787.]

Given the substantial concerns about the bill and the lack of a compelling argument from the Executive, the SNP wants to ensure that the maximum number of provisions are subjected to the extensive early scrutiny afforded by the procedures of this Parliament. I urge Parliament to support the SNP amendment.

I move amendment S1M-733.1, to leave out from "as set out" to end and insert:

"and accordingly agrees that the provisions within the Regulation of Investigatory Powers Bill which relate to devolved matters should be considered by the Scottish Parliament."

Photo of Phil Gallie Phil Gallie Conservative 3:53 pm, 6th April 2000

The bill attempts to avoid screw-ups of the sort that Scotland has experienced as a consequence of incorporation of the European convention on human rights. Roseanna Cunningham mentioned the fact that, for 300 years, our two legal systems have worked together. However, in the past few months, our legal system has been subject to great scrutiny because of our early involvement in the European convention.

The bill addresses complex matters, recognises huge advances in technology and acknowledges a need to update the Interception of Communications Act 1985. I recognise Roseanna Cunningham's concerns about watering down devolved powers. From her position of support for Scottish integration in Europe instead of in the United Kingdom, it is understandable. I will not be entirely dismissive of her remarks and I seek assurances from ministers that the activities of the Scottish police will not be hampered by the proposed changes.

The bill could be described as a spies charter. It is a pity that Sean Connery is not here to lead for the Scottish National party. That would have been an interesting scenario.

We accept that the explosion in new methods of communication has given rise to an explosion in new methods of committing crime. We foresee great opportunity for the unscrupulous to extend activity in more traditional areas of preying on the more vulnerable sector of law-abiding society.

Having observed the havoc that the incorporation of the ECHR has created, we believe that this is a step towards ensuring that, in future, the capability of this country's law enforcement, security and intelligence systems is not damaged. We put the interests of the Scottish people above political dogma, on which basis we are likely to give full support to the Executive's intent as expressed in the motion.

To a degree, we recognise that speed is of the essence, bearing in mind the October date. We feel that the bill may not go far enough in naming certain individuals who can authorise surveillance techniques. I ask the minister to spell out who in Scotland will have such authority, perhaps comparing their remit with that of those who currently have such powers.

We have concerns about the burdens that are imposed on business by parts I and II of the bill. Those provisions require service providers to maintain an interception capability and to provide detailed logs of traffic. Can the minister advise us whether Government finance will be available to assist in the provision of such facilities? If so, what proportion of that, if any, is expected to be funded from the Scottish block grant?

Part III of the bill allows authorities to demand electronic keys to decode encrypted messages. Anyone who refuses to comply, for whatever reason, is regarded as breaking the law. The practicality of that is questionable, although the objectives certainly have merit. I am sure that that matter will be addressed by my colleagues in the Westminster Parliament.

All the SNP's MPs are members of this Parliament. They have a duty to ensure that the bill is addressed properly as it undergoes scrutiny in the Westminster Parliament, and that Scottish issues are protected. They also have a duty, in their role as Westminster MPs, to communicate with the press, as do Labour MPs who currently serve at Westminster and continually bitch about the fact that they have been wiped out of the headlines here in Scotland. The bill will affect Scotland seriously, and Scottish MPs should be involved to the full.

Perhaps those MPs could investigate the issue of the commissioners who will be appointed to scrutinise the workings of the bill, and seek assurances that adequate consideration will be given to Scottish law enforcement agencies and existing Scottish law. They would be better informed if the minister today clarified any areas of concern that remain after discussions between Executive members and their counterparts at Westminster.

Having looked back through answers that have been given by the First Minister to questions about contacts with the Prime Minister and the Cabinet, I find it strange, considering the importance that the Executive places on the bill, that there is no reference to discussion on those issues.

I am aware that there are purely Scottish issues that require to be addressed. I understand that the Executive is to launch a separate Scottish bill, as the minister said. Roseanna Cunningham informed the Justice and Home Affairs Committee last week that such a bill will have to be cleared before the summer recess. However, the bill has not been produced even in draft form and there is no clear idea of its content, although the minister perhaps has given us a little hint today. Standing orders will have to be suspended to allow hasty progression of the bill from stages 1 to 3. Surely that is no way in which to conduct serious business of this nature.

Given that we have no revising chamber, and that we are expected to push legislation through on a right-first-time basis, the minister must recognise that his justification for what some may describe as yet another shambles will have to be good if our enthusiastic support is to be given for his motion.

Photo of Des McNulty Des McNulty Labour 3:59 pm, 6th April 2000

I welcome the general principles of the bill. For the first time, law enforcement agencies and other public authorities will have clear guidance on the circumstances under which they can use particular surveillance techniques. Members of the public will benefit, as the circumstances will be clear under which those powers can be used. If they believe that those powers have been abused, they will have access to an identifiable tribunal, and commissioners will be charged with reporting to the Prime Minister each year on the use of the powers in the bill. There has been a general welcome both for those safeguards and for the fact that we are bringing regulation in this area into line with the European convention on human rights.

However, I will pick up on the question whether the bill should be dealt with at Westminster or at Holyrood, which is raised in Roseanna Cunningham's amendment. It seems to me that that question should not necessarily be dealt with as an issue of principle, as she suggests, but rather that it should be dealt with case by case and circumstance by circumstance, as there are pragmatic advantages and disadvantages of proceeding along different routes.

I will run through the powers that are covered by the bill, to highlight some of the issues on which members might take a view on whether it is more effective for the bill to be dealt with in Westminster or whether it should be dealt with in Scotland.

The first power is that of the interception of communications, including e-mail messages, mobile phone calls and text pager messages. It is clear that massive technological change has transformed the communications environment in which we live. Arguably, there is a case for international, rather than purely national, regulation. To produce a fragmentation in the regulatory procedure that covers such issues in the UK would, in a sense, multiply the opportunities for confusion and would probably increase the costs of, and confuse, enforcement. I do not think that the argument lies with Roseanna Cunningham in relation to the first power.

The second power is that of the acquisition of communications data, such as billing data on who has called whom and how often, where existing arrangements for handing over data by service providers are not sufficiently tightly drawn. Again, it seems to me that there is a strong economic case for a single system of regulation to cover the UK, rather than separate systems—one for Scotland and another for the rest of the UK. Breaking up a regulatory procedure would create an unwelcome burden on businesses, so the argument goes against Roseanna Cunningham again.

The third power is that of intrusive surveillance. The matters covered in part II of the bill apply to Scotland only in certain circumstances, and Mr Wallace indicated his intention to introduce legislation to cover those circumstances. Therefore, the matter is being dealt with separately.

The fourth power is that of directed surveillance, which involves tracking people's movements, and to which I would link the fifth power of the use of covert human intelligence sources. As an example, the police in the UK rely on intercepted intelligence to deal with the drugs problem. About 52 per cent of heroin seizures in the UK in 1998—the last year for which information is available—were made through that mechanism; the value of drugs seized in those circumstances was in excess of £185 million. Separate systems of regulation would not assist the police—they would hinder police co-operation and effectiveness. Again, the argument lies against Roseanna Cunningham.

The final power is that of decryption, which is a complex technical term that refers to, for example, decoding the contents of the hard drive of a suspected paedophile or messages that criminals might have sent over the internet in encrypted form. Why do we need a separate Scottish system of regulation to deal with decryption, when, arguably, a UK-based system will be cheaper, more effective and more comprehensive?

Investigation of those issues indicates to me that the arguments point to a UK-based system. I would go further and argue for the introduction of a European or international system of regulation, especially in combating pornography, paedophilia and drug trafficking. Rather than trying to devolve those issues down, we should try to aggregate them up, so that the procedures of law and order and the democratic systems of information control and accountability become more effective. The balance of the argument lies with the bill being dealt with through the mechanism proposed by the Executive and not through that proposed by Roseanna Cunningham.

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

I am afraid that I can probably call only two members, provided that they stick to three minutes each.

Photo of Tommy Sheridan Tommy Sheridan SSP 4:04 pm, 6th April 2000

In the absence of my amendment, I shall support Roseanna Cunningham's amendment. The bill that is going through the Westminster Parliament is called the Regulation of Investigatory Powers Bill, or RIP. Many civil rights campaigners believe that we may be witnessing the RIP of civil liberties in Britain if that bill is passed in its current form.

I want to highlight one or two concerns that have already been raised by a number of organisations, including Justice, Privacy International, Statewatch, The Observer and The Sunday Herald. It is only right and proper that those concerns be brought to this chamber. The people in those organisations are concerned citizens and their points should be listened to.

There are concerns about the widespread powers, given to the police by the Home Secretary, to intercept all electronic communications. We recently discovered that the Central Intelligence Agency, via the Echelon programme, is already spying on all our communications. Now Jim Wallace tells us that we should trust Jack Straw to be vigilant over our civil liberties.

The civil liberties group Justice has made the following points. First, the presumption of innocence will be violated. Failure to comply with a decryption notice will be a criminal offence unless the person in question can prove that he or she does not have the key or does not have access to it because, for example, the password may have been forgotten. That contravenes an important element of the right to a fair trial guaranteed by article 6 of the European convention on human rights: that it is for the prosecution to prove the offence, not for the defendant to prove his or her innocence.

Secondly, the proposed legislation infringes the right not to self-incriminate. It is impossible for the police to prove by technical means that the defendant has possession of the key. The only way of proving that he or she has had the key is by way of admission by the defendant. Furthermore, disclosure of the key by the defendant may lead to the discovery of incriminating material. That contravenes a person's right to remain silent and not to contribute to incriminating himself or herself, as guaranteed under article 6 of the ECHR.

Thirdly, there are inadequate safeguards against abuse. Not all decryption notices have first to be authorised by a judge. There is no requirement that the notice be restricted to serious crime, so it could be used for low-level criminal data gathering. There are inadequate safeguards on the holding of the decryption key and any material that is thereby obtained. There is no requirement to inform the covert investigations commissioner that such notices have been served. All those requirements are necessary to safeguard privacy rights under article 8 of the European convention on human rights.

A number of organisations have pointed out that the proposed level of power and surveillance is unprecedented anywhere else in the world and that our lives could become nothing more than surveillance profiles. That is why every aspect of this bill that relates to Scotland must be studied and amended here in Scotland—so that we can be vigilant about the defence of our civil liberties.

We would not put Genghis Khan in charge of a community crèche and I would therefore not like to put Jack Straw in charge of our civil liberties.

Photo of Euan Robson Euan Robson Liberal Democrat 4:08 pm, 6th April 2000

I am pleased that the Minister for Justice has introduced this important, though truncated, debate. The Westminster bill is 90 pages long and has explanatory notes running to 54 pages. It is not the most digestible of reads.

The Liberal Democrats welcome the minister's assurances, which help to dispel some of the fears that have been voiced in the press. We also agree that the Scottish bill should not include other ECHR provisions, such as those covering district courts or part-time sheriffs. Those matters should be covered by a separate bill. A composite measure would have been a legislative dog's breakfast.

We are more than happy that the ECHR should be applied to telephone tapping, electronic interceptions and surveillance. That is an important development. We accept the minister's good intention of ensuring that protection of the individual citizen is extended and enhanced. We also accept that we must ensure that crime does not migrate to Scotland because of deficiencies in the powers of the police or of UK bodies such as Customs and Excise. Criminals should not be allowed to profit from any legal grey areas. Criminals will make use of modern technology; we must not allow them to steal a march to advance their wrongdoing.

In brief, we understand that we are being asked to allow devolved Scottish matters in parts I, III and IV to be decided at Westminster on a UK-wide basis, while part II is effectively converted into a bespoke Scottish statute. I say to the minister that we have reservations and concerns and look to our colleagues at Westminster—particularly Simon Hughes and Alan Beith, who has taken an interest—and, doubtless, Scottish MPs, to deal with those matters.

Section 73 disapplies part II in respect of Scotland, subject to three exceptions. Who authorises those exceptions? Who is to issue warrants under parts I, III and IV? The Deputy First Minister and Minister for Justice or the Secretary of State for Scotland? Section 7(1) refers to "the Secretary of State." Does that mean the Home Secretary? What are the boundaries? Is it sensible for two or three ministers to issue warrants in separate jurisdictions?

If and when part II is enacted in Scotland, there will be fundamental changes to policing practice. What preparations are the police making for those changes? I understand that, laudably, the police have tried to act in compliance with the European convention on human rights since 1 April. While policing practices may be more complicated, chief constables accept that legislation will make the service more accountable.

There are also concerns about tribunals. Whereas we can see the advantages of a UK-wide tribunal system, the minister should ensure—underline ensure—that the Scottish judiciary is represented. He should also ensure that the Scottish judiciary has—underline has—to be involved where Scots law is involved. Not only that, the operating rules for the tribunal that affect Scotland should be made or amended only after the agreement of Scottish ministers. Consultation is not enough.

In future, if we wish to amend parts I, III and IV of the RIP bill that are devolved matters and are within our legislative competence, can we do so? It would be helpful if we could have an answer.

Photo of Michael Matheson Michael Matheson Scottish National Party 4:12 pm, 6th April 2000

I will begin by offering Mr Gallie an apology that Mr Connery cannot make it today. However, Mr Gallie will be aware that Mr Connery is taking an active interest in the bill, given that it may have a bearing on his future employment.

I am sure that the minister recognises that some suspicion surrounds this bill and the purposes for which it is intended. Earlier this week, the Justice and Home Affairs Committee tried to consider it but came unstuck when it found that the Executive had not published the bill pertaining to Scotland. The minister should reflect on the amount of work the committee is devoting to Executive issues, as opposed to undertaking scrutiny of its own and introducing its own legislation.

My colleague Roseanna Cunningham mentioned that we have been supportive of Sewel motions when appropriate. She referred to the fact that a Sewel motion may be being applied in this case to relieve the Justice and Home Affairs Committee of some work. I believe that it is more a case of trying to give Westminster a free hand on the bill than any particular concern about the Justice and Home Affairs Committee's work load.

I am particularly concerned that, given the time scale that has been set for this bill, the committee and this Parliament will not have sufficient time to consider the details of the bill and the implications for Scotland. Let us be clear: this bill has major implications for civil and human rights in Scotland. It is not only that in some instances an exception will apply to Scotland; many aspects of the Westminster part of the bill will have an impact on our civil rights in Scotland.

Photo of Michael Matheson Michael Matheson Scottish National Party

I have only a short time.

Among other things, the bill addresses interception of communications, intruder surveillance and covert surveillance. They are complex matters that require time to be properly considered. As members have highlighted, there is concern at Westminster not just among Liberal Democrats, but among Labour back benchers, who feel that the bill takes too many civil liberties from the citizens of England and Scotland.

Jack Straw made a comment similar to that made by Jim Wallace in his opening remarks today—that many of the measures that the bill will introduce will create a framework around what is already taking place. That is an admission that some of the services in Scotland are already acting outwith their legal rights and it equates to the argument that as people's civil liberties are already being broken, we should legislate to ensure that they are broken in a consistent manner.

The SNP will, when appropriate, support Sewel motions, but in this case we are concerned about how the bill will infringe upon civil liberties and human rights in Scotland. It is for that reason that Parliament should examine the bill in an appropriate time scale. I ask the minister to take that on board. Parliament should be given the right amount of time to consider the full implications of the bill so that we can ensure—as all members have a responsibility to do—that we stand up for the civil and human rights of the people of Scotland.

Photo of Jim Wallace Jim Wallace Liberal Democrat 4:16 pm, 6th April 2000

I will try to be brief.

The debate has been useful. Ms Cunningham has raised points of order in the past to the effect that I might have gone too far in a radio interview, but I find it rather rich to hear her say that what I announced in a written answer to Parliament did not matter and could be lightly dismissed. She might acknowledge that I wrote to her in her capacity as convener of the Justice and Home Affairs Committee. I appreciate, however, that that might not have got through to the spokesman for the SNP.

Photo of Roseanna Cunningham Roseanna Cunningham Scottish National Party

Does not the minister agree that conversations that he and I—I in my capacity as convener and he as Minister for Justice—have are frequently not meant for public consumption. I respect that—I do not expect the minister to attack me for that.

Photo of Jim Wallace Jim Wallace Liberal Democrat

I did not mention a conversation. I said that I had written to the convener of the Justice and Home Affairs Committee. I assumed that that letter would be communicated to the committee. That would be the proper course to take in trying to inform Parliament. It has also been made clear that the Executive intends to ensure that the Scottish bill parallels the UK bill. If anyone wants to know what the likely shape of the Scottish bill will be, they can pick up a copy of the UK bill. It will be for Parliament to decide whether to make any amendments. It is farcical to pretend that people have no knowledge of what is in the bill.

Photo of Roseanna Cunningham Roseanna Cunningham Scottish National Party

The minister is well aware that until yesterday I was under the impression that the bill that was to be put before us after the Easter recess was the same bill, but including ECHR compliance. That it will not be was not public knowledge. That makes it extremely difficult to plan. Will the minister accept that?

Photo of Jim Wallace Jim Wallace Liberal Democrat

I accept that Ms Cunningham did not know that there were to be two bills, but the point that was made was that she had no knowledge of what the surveillance provisions in the bill would be. She would have had a shrewd idea of what those provisions will be if she had bothered to pick up a copy of the UK bill and examine it. We are hearing a lot of synthetic froth about the matter.

The matters that have been debated are serious and I hope that Parliament will have adequate opportunity to consult on and discuss them. I would like to make it clear that, provided we can get the Scottish bill on the statute book before 2 October, we will return to it after the summer recess. That will be satisfactory.

Mr Gallie asked who would be allowed to authorise the highest categories of intrusive surveillance, including bugging of hotel rooms or cars. Such authority would rest with chief constables, but a police commissioner would have to be notified before a warrant took effect. Lower levels of surveillance—for example, trailing and the use of informants and undercover agents—would be authorised by a police superintendent or higher ranking officer.

Euan Robson asked about the mention in the Scottish bill of the Secretary of State for Scotland and whether that would, in practice, mean the Secretary of State for the Home Department or others. That would be the case in relation to security services because they are not a devolved responsibility. There is executive devolution on, for example, the issuing of warrants for telephone tapping and interception of communications. Exercise of such functions by Scottish ministers is under consideration. We will, no doubt, be able to examine that matter in the context of the bill.

Mr Sheridan raised a point about self-incrimination. Reversing the burden is not automatically in contravention of article 6 of ECHR—there are a number of statutory offences where the burden of proof is reversed.

Euan Robson asked whether it will be possible to amend parts I, III and IV as they relate to devolved matters. If it is in relation to Scotland, our view is yes, provided that the purpose would relate to a devolved matter of empowering the police to investigate crime.

Photo of Phil Gallie Phil Gallie Conservative

I am still not clear about what will be in the bill that we have been told will come to this Parliament. From what the minister says, it sounds as if it will almost be a replica of the Westminster bill; in that case, can a draft be published quickly so that we can examine it?

Photo of Jim Wallace Jim Wallace Liberal Democrat

In relation to intrusive surveillance, the Scottish bill will parallel the UK bill. I am sure that we could make arrangements for Mr Gallie to have a copy of the UK bill.

We want to publish the Scottish bill as soon as possible. It will be for this Parliament to decide whether it wants the bill to be exactly the same; there would many advantages in keeping it as close as possible to the UK bill, but it will be a matter for this Parliament to decide.

We ask this Parliament to consent to the UK Parliament legislating in a devolved area because we believe that there are good reasons for having the uniformity I have mentioned in the areas to which I have referred. The last thing we want—Mr Gallie will grasp this point readily—is a grey area that would allow a high-profile case to fail because this Parliament's competency to legislate was challenged. The public would expect us to give them the protection they want.

This is about achieving a balance between individual rights and ensuring that the police have the—properly regulated—powers they need to detect and combat serious crime. That is why I ask the Parliament to support the motion.

Meeting suspended.

On resuming—