Section 1 — Conduct to which this Act applies

Regulation of Investigatory Powers (Scotland) Bill: Stage 3 – in the Scottish Parliament at 9:31 am on 7th September 2000.

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Photo of Angus MacKay Angus MacKay Labour 9:31 am, 7th September 2000

Amendment 25, in the name of Jim Wallace, is designed to provide that surveillance that involves a device or person on residential premises or in a private vehicle, but which is targeted on someone who is outside the premises or vehicle, would be classed as directed, rather than intrusive, surveillance.

The bill recognises that there are degrees of invasion of privacy; in our view, the expectation of privacy would clearly be highest within a person's home or private vehicle. The most important factor in deciding the extent to which an individual's privacy is likely to be invaded is the location of the target, as opposed to where the surveillance devices are located.

Under the bill, surveillance that is targeted on someone within a residential premises or private vehicle is rightly classed as intrusive surveillance. However, an individual's expectation of privacy is clearly far less if they are in a public place. For example, people walking down the street are aware that they can be seen from the windows of houses overlooking that street. For that reason, surveillance targeted on a person who is outside residential premises or outside a private vehicle clearly does not, in our view, justify an authorisation for intrusive surveillance, irrespective of where the surveillance device itself is located.

I move amendment 25.

Photo of Euan Robson Euan Robson Liberal Democrat

I would like the minister to clarify whether, if someone moves from a domestic premises out of doors, the type of surveillance would change. I am not clear about the purpose of the amendment—if one was applying for an order for intrusive surveillance, one would also have to apply for an order for directed surveillance. Can the minister enlighten me?

Photo of Phil Gallie Phil Gallie Conservative

These points are queries. Perhaps the minister could explain what is meant by residential properties. I might be failing to understand, but I think that we could have a situation where an individual was being checked on in a business property.

I would like to know the reasoning behind the amendment. I compared its wording to what was presented to the Justice and Home Affairs Committee. The two paragraphs, (a) and (b), have been reversed, but there does not seem to be a major difference between the wording and effects of the amendments. I do not intend to oppose amendment 25, but I would like the minister to clarify those points.

Photo of George Reid George Reid Scottish National Party

As no other member wants to speak, I ask the minister to respond to those points.

Photo of Angus MacKay Angus MacKay Labour

I will deal with Phil Gallie's point first. The purpose of amendment 25 is to provide that surveillance that involves a device or a person on residential premises or in a private vehicle and that is targeted at someone who is outside the premises or vehicle would be classed as directed rather than intrusive surveillance. The nub of the issue is how we define what constitutes intrusive or directed surveillance. Is it where the surveillance device is located or where the person under surveillance is located? It seems common sense that our starting premise should be the individual's expectation of privacy and what they would think their rights were. If the individual were located within their home, they would have a high expectation of privacy, whereas if they were in a more public space—as I said, degrees of privacy are involved in the invasion of privacy—we feel that what is set out in this amendment would be appropriate.

Photo of Phil Gallie Phil Gallie Conservative

I accept the minister's definitions. However, an individual who was running a small business might be in a private office, which he would feel was a place where he could expect privacy.

Photo of Angus MacKay Angus MacKay Labour

I was coming to that point. As I said, the bill recognises that there are degrees of invasion of privacy. For that reason, we must consider where an individual could expect to have absolute privacy or near absolute privacy and where he would be operating in a public place. My understanding is that, if an individual were in a place of business, they would expect greater privacy than they would in a public place. For that reason, Mr Gallie's concern about the authorisation would be met by what is proposed in the amendment and by what will be covered in the code of guidance.

Euan Robson also made a point, but I am afraid that I cannot recall what it was. May I invite him to repeat it?

Photo of Euan Robson Euan Robson Liberal Democrat

If a target is moving between premises, is it necessary to apply for the more onerous intrusive surveillance rather than directed surveillance?

Photo of Angus MacKay Angus MacKay Labour

I recalled the point as Euan started to speak. If the intrusive surveillance target is expected to be mobile or is likely to be mobile, it would be prudent for the relevant public authority to have directed surveillance authorisation as well. I think that that covers Euan Robson's concern.

On Phil Gallie's point, business premises per se would not be within the specific definition relating to intrusive surveillance, but it may be possible to deal with that sort of issue in drawing up the code of guidance, when we examine how forces would be expected to operate in more specifically defined circumstances.

Amendment 25 agreed to.

Photo of George Reid George Reid Scottish National Party

We now come to amendment 1, which is grouped with amendment 2.

Photo of Ben Wallace Ben Wallace Conservative

In lodging these amendments, I was trying to sum up what the bill is about—it is designed to protect not just the police in the course of their duties, but the public. I am grateful to members of the Justice and Home Affairs Committee, who listened to some of my past experiences.

I have tried to clear up the grey area that will result from the bill: when is a source not a source, and when is the use of a covert human intelligence source actually just the use of a regular contact, who volunteers information to the police or develops a relationship with a detective or a member of an agency?

Many covert human intelligence sources derive benefit from their actions. They are either paid or it is perceived that they get some benefit or special treatment from the agencies, which is used to cultivate them so that they carry out directed surveillance or actions. That is why the amendments refer to direction. I want to clear up what is often a difficult problem on the ground.

Notoriously, the relationship between handlers—the people who deal with the sources—and senior officers is often strained. Handlers are secretive about whom they know or develop as sources and they do not like to share that information with senior officers. In my experience, senior officers have mostly shied away from any legislation on this matter; if there has to be legislation, they would like it to be as woolly as possible. However, handlers would like better and more directed legislation, so that they know when they cross the line between having a friendly relationship with someone or leaning on them and making them work for the agency.

The minister will probably say that the term "cultivation" provides a clue to determining whether a source becomes directed and, in effect, comes into the employ of an agency. However, sources are not cultivated overnight. A handler picks a group of people in an area and tries to develop relationships with them all, sometimes over many years. When those relationships come to fruition, it may be that one in 10 of those people can be called on as a source. That is when the cultivation happens.

This is a very grey area, which my amendments would go a long way towards clearing up, so that we can avoid cases like those that have occurred in the past, both in national security and police forces, when handlers have crossed the line and public safety and privacy have been put at risk. The amended section would provide that, if a person came under the direction of an agency or gained benefit, they would in effect be a covert human intelligence source. However, if the person happened to be a good neighbour who had a good relationship with a detective on a regular basis or another member of that agency on an ad hoc basis, that individual would not be a source and there would be no need for a lot of unhelpful paperwork and approvals to allow contact to be made. I know that senior officers will say that they are sure that handlers can make the right judgment, but time after time we have seen that they cannot make that judgment. That is when the public, as well as the handler, lose out.

The best-known case—it would not be covered by this bill, but it involves the same issue of the handling of sources—was that of Brian Nelson in Northern Ireland, in which the handlers were reticent about checking with their senior officers how far they could push their source. The case ended up with public safety being infringed and several people quite rightly going to jail.

I have spoken to many people about this matter. There is a marked difference between the feelings of people on the ground and those of people up top and in the bureaucracies. I am trying to protect everybody on the ground rather than the senior officers, who are probably not in favour of any regulation of the use of covert intrusive surveillance or sources.

I move amendment 1.

Photo of Christine Grahame Christine Grahame Scottish National Party

The amendments are very interesting. It is obvious that Ben Wallace has a great deal of experience. I did not think that someone who said that their neighbour was up to something funny would count as a covert human intelligence source. Section 1(7) defines a covert human intelligence source as a person who

"establishes or maintains a personal relationship or other relationship with another person for the covert purpose" of facilitating the doing of something as defined. The relationship is established or maintained for a specific purpose. This is not about information that is passed willy-nilly. I would like further information on why Ben Wallace does not think that that definition is tight enough.

Photo of Ben Wallace Ben Wallace Conservative 9:45 am, 7th September 2000

The problem is that sources are, by their very nature—the fact that they have a relationship with the person, perhaps a workmate rather than a neighbour, on whom they inform—covert. Section 1(7)(b) says that a person is a covert human intelligence source if the person

"covertly uses such a relationship to obtain information or to provide access to any information".

The relationship—being in business with someone or working with them—is being used. My initial amendment, which was changed slightly by the committee clerks, simply used the word "directed", because using a relationship in a directed manner is key to what I mean when I talk about covert intelligence.

Photo of Christine Grahame Christine Grahame Scottish National Party

The member is making it sound as though obtaining information in such a manner is incidental to the relationship, but the definition relates to relationships that are set up for the purpose of obtaining covert information, so I do not see why we need the amendment.

Photo of George Reid George Reid Scottish National Party

The member can deal with that point when he winds up.

Photo of Gordon Jackson Gordon Jackson Labour

Like Christine Grahame, I believe that the amendment is interesting and I feel that Ben Wallace's experience in these matters is valuable, as it gives us an insight into the problem. I have no idea what the minister will do with the amendment, but I have a question. I can understand that there are people in the grey area whom we would not necessarily want to fall within the terms of the bill, because that would inhibit the work of the security services. However, I would have thought that, in practice, the security services or the police would still use the kind of people whom Ben Wallace is talking about outside the scope of the bill, without feeling the need to bring them within the terms of the bill. My fear is that, if we include this exception in the bill, the authorities could use it to justify not registering people when they should and could contrive situations in which they would say that they were not directing the person or paying them money. They could use the grey area in reverse, so to speak, and get round the provisions of the bill by using Ben Wallace's exception. I am interested to hear whether the member believes that that could be a genuine danger.

Photo of George Reid George Reid Scottish National Party

Let the minister in, Mr Wallace, and you can deal with those points when you wind up.

Photo of Angus MacKay Angus MacKay Labour

Let me set out our general position and make it clear from the beginning that we intend to resist the amendments.

Law enforcement agencies regularly rely on information volunteered to them by members of the public with no expectation of reward. In our view, it is important that that useful source of information should not be fettered. It is therefore not our intention that those who carry out such activities, which Christine Grahame described, should fall within the definition of a covert human intelligence source.

As section 1(7) of the bill makes clear, covert human intelligence sources are individuals who establish or maintain a relationship with another person for the covert purpose of obtaining, providing access to or disclosing information obtained as a result of that relationship. Furthermore, under section 1(6), references in the bill to the conduct of a covert human intelligence source are references to public authorities inducing, asking or assisting a person to engage in or to obtain information by means of such conduct. Although amendment 1 seeks to clarify that point, our view is that it would not work, as it refers to persons authorised for using covert human intelligence sources. The bill does not authorise people in that way. Instead, it provides that officers of a particular rank—in the case of the police, we propose that that rank should be superintendent—can authorise the use of a covert human source in specified circumstances.

It is also worth drawing the member's attention to the foreword to the code of practice covering the use of covert human intelligence sources, which states that

"members of the public are encouraged to give information or to provide assistance to the police and other authorities

. . . with no expectation of a reward . . . Nothing in the provisions of the Regulation of Investigatory Powers (Scotland) Act 2000, nor in this code of practice affects such activity."

Indeed, it could be argued that it is the duty of citizens to come forward with such information on criminal acts.

We ask Mr Wallace not to press amendments 1 and 2 on the grounds that they are not necessary and that amendment 1 is technically deficient. The bill and the code of practice already provide that the actions referred to in the amendments do not fall within the definition of the use of covert human intelligence sources contained within the bill. Although I understand and have some sympathy with what Ben Wallace is trying to achieve, we feel that the bill contains adequate cover.

Photo of Phil Gallie Phil Gallie Conservative

I commend Ben Wallace for lodging these amendments. He is certainly well intentioned and to some degree we ignore his advice at our peril. He has been in the front line and knows what is required.

Ben seeks protection for the source, who is carrying out acts of good citizenship. I am concerned that, under certain circumstances, the source could lay themselves open to civil actions somewhere along the line through becoming involved in this process, even though their actions might not come under the description of "covert" offered by the minister. I will listen to Ben's summing-up on that point and we will try to determine the best interests of the good citizen and society as a whole.

Photo of Ben Wallace Ben Wallace Conservative

Instead of developing a relationship with a source, one can use their geography. For example, if the old lady who lives at number 74 happens to be a good neighbour of someone in number 86 who is known to be a criminal, we do not have to tell the source to develop a relationship with that person for our benefit; we target their situation, so that their information becomes important and directed. We go to number 74 and develop the relationship in that way. As a result, the old lady might not know why we are developing such a relationship. We do not tell the source to look out her front window at her neighbour every day; instead we manipulate the situation by using the source's geography. That point needs clarification.

Gordon Jackson's comments were interesting. In the case of Brian Nelson, where handlers overstepped the mark, a woolly use of the word "direction" was used by the defence during the trial. The handlers said, "We were not directing our informer; he simply happened to tell us what he was doing and that there were bad people in the area, and we were giving him information to help him to get closer to running his sources." They said that they did not tell him to pervert the course of justice or target certain individuals. However, they were found wanting with such a passive defence.

My amendments seek to protect the public as well as the handlers. Intelligence is all about knowing the full picture. Very often the source is the person being manipulated. Sources often do not know what operation they are part of; for example, no one tells them that they are actually informing on their workmate because he is involved in a £2 million fraud. It is the nature of source handling that sources are manipulated as much as anyone else, which sometimes makes the job pretty unpleasant. I am trying to protect the public from such manipulation as well as the handler who sometimes gets it wrong, which is why I will press the amendment to a vote.

Photo of George Reid George Reid Scottish National Party

The question is, that amendment 1, in the name of Ben Wallace, be agreed to. Are we agreed?

Members:

No.

Division number 1

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

Photo of George Reid George Reid Scottish National Party

The result of the division is: For 14, Against 86, Abstentions 0.

Amendment 1 disagreed to.

Amendment 2 not moved.