Section 27 — Interpretation

Regulation of Investigatory Powers (Scotland) Bill: Stage 3 – in the Scottish Parliament at 12:00 pm on 7th September 2000.

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Amendment 74 moved—[Angus MacKay]—and agreed to.

Photo of Michael Matheson Michael Matheson Scottish National Party

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.

Photo of Jim Wallace Jim Wallace Liberal Democrat

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.

Photo of Phil Gallie Phil Gallie Conservative

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.

Photo of Dennis Canavan Dennis Canavan Independent

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?

Photo of Phil Gallie Phil Gallie Conservative

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.

Photo of Michael Matheson Michael Matheson Scottish National Party

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.

Photo of George Reid George Reid Scottish National Party

The question is, that amendment 7, in the name of Michael Matheson, be agreed to. Are we agreed?

Members:

No.

Division number 4

For: Adam, Brian, Aitken, Bill, Campbell, Colin, Canavan, Dennis, Crawford, Bruce, Cunningham, Roseanna, Douglas-Hamilton, Lord James, Elder, Dorothy-Grace, Ewing, Dr Winnie, Ewing, Fergus, Ewing, Mrs Margaret, Fabiani, Linda, Gallie, Phil, Gibson, Mr Kenneth, Goldie, Miss Annabel, Grahame, Christine, Hamilton, Mr Duncan, Harding, Mr Keith, Harper, Robin, Hyslop, Fiona, Ingram, Mr Adam, Johnston, Nick, Johnstone, Alex, Lochhead, Richard, MacAskill, Mr Kenny, MacDonald, Ms Margo, Matheson, Michael, McGrigor, Mr Jamie, McGugan, Irene, McIntosh, Mrs Lyndsay, McLeod, Fiona, Morgan, Alasdair, Mundell, David, Paterson, Mr Gil, Quinan, Mr Lloyd, Robison, Shona, Scanlon, Mary, Scott, John, Tosh, Mr Murray, Ullrich, Kay, Wallace, Ben, Welsh, Mr Andrew, White, Ms Sandra, Wilson, Andrew
Against: Baillie, Jackie, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Eadie, Helen, Ferguson, Patricia, Finnie, Ross, Galbraith, Mr Sam, Gillon, Karen, Godman, Trish, Gorrie, Donald, Grant, Rhoda, Gray, Iain, Henry, Hugh, Home Robertson, Mr John, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Jenkins, Ian, Kerr, Mr Andy, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, MacKay, Angus, MacLean, Kate, Macmillan, Maureen, Martin, Paul, McAllion, Mr John, McAveety, Mr Frank, McCabe, Mr Tom, McLeish, Henry, McMahon, Mr Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, Mr John, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Radcliffe, Nora, Robson, Euan, Rumbles, Mr Mike, Scott, Tavish, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Smith, Margaret, Stone, Mr Jamie, Thomson, Elaine, Wallace, Mr Jim, Whitefield, Karen, Wilson, Allan

Photo of George Reid George Reid Scottish National Party

The result of the division is: For 44, Against 63, Abstentions 0.

Amendment 7 disagreed to.

Photo of George Reid George Reid Scottish National Party

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—

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament 2:30 pm, 7th September 2000

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.]