Section 17 — Functions of Chief Surveillance Commissioner

Regulation of Investigatory Powers (Scotland) Bill: Stage 3 – in the Scottish Parliament at 10:45 am on 7th September 2000.

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Photo of George Reid George Reid Scottish National Party 10:45 am, 7th September 2000

We now come to amendment 20, which is grouped with amendments 62, 21, 65 and 70.

Photo of Angus MacKay Angus MacKay Labour

This is a group of technical amendments to the provisions that relate to the tribunal that was established by the Regulation of Investigatory Powers Act 2000, which that act specifies will be the forum for complaints arising from authorisations under the bill. As with the commissioners and the National Criminal Intelligence Service, for the avoidance of doubt we seek to make it clear that we are not seeking in the bill to confer functions on the tribunal.

Amendment 62 makes it clear that the bill does not seek to specify what assistance the tribunal may require of the commissioner. Amendment 65 aims to remove any doubt that the right to complain to the tribunal is conferred by the Regulation of Investigatory Powers Act 2000, rather than by this bill. Amendment 70 makes it clear that the bill does not require the tribunal to take account of the codes of practice.

The other two amendments in this group, amendments 20 and 21, insert a missing "the" into the text, and correct the numerical reference to the section of the Regulation of Investigatory Powers Act 2000 that deals with the tribunal.

I move amendment 20.

Photo of Michael Matheson Michael Matheson Scottish National Party

I will speak to amendment 62. I understand what the minister said about these being technical amendments. However, I see that the amendment would introduce a change to the terminology in relation to how the chief surveillance commissioner will give information to the tribunal. As it stands, section 17 states that the chief surveillance commissioner shall give information to the tribunal

"as the Tribunal may require."

The amended section would state that the chief surveillance commissioner shall provide such information as "is appropriate".

I could envisage a situation in which one chief surveillance commissioner thought that certain information was appropriate to pass to the tribunal and another thought that it was not. I am concerned about whether guidance will be issued to chief surveillance commissioners or whether guidance on what should be considered appropriate will be included in the codes of practice, so that there is consistency in what chief surveillance commissioners think is appropriate for the tribunal process. Does the minister think that the amendment could impede the role of the tribunal if there is no guidance in the codes of practice or elsewhere?

Photo of Christine Grahame Christine Grahame Scottish National Party

It seems that there has been a shift in the balance of power. As section 17 stands, the tribunal determines what it may require. Under amendment 62, which is more than technical, it is the chief surveillance commissioner who decides what is appropriate.

Photo of Angus MacKay Angus MacKay Labour 11:00 am, 7th September 2000

Michael Matheson and Christine Grahame raised one or two issues there. The debate about whether the terminology should be "may" or "is appropriate" is interesting, because neither is a terribly precise form of language. "May" is an enabling term, whereas "is appropriate" is perhaps more a term of judgment.

I appreciate the point that Michael Matheson seeks to make, but the Executive is not persuaded that the amendment would make a material difference to the way in which the tribunal operates or that it would hamper the tribunal's capacity to fulfil its purpose. I am happy to consider the possibility of addressing the issue in part when we consider the code of practice and any final guidance to be issued. I can give that undertaking, but I cannot at this stage give an undertaking that we will bring forward anything specific or concrete. However, I will ensure that we approach the matter with an open mind.

Amendment 20 agreed to.

Amendment 62 moved—[Angus MacKay].

Photo of George Reid George Reid Scottish National Party

The question is, that amendment 62 be agreed to. Are we agreed?

Members:

No.

Division number 2

For: Aitken, Bill, Baillie, Jackie, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Douglas-Hamilton, Lord James, Eadie, Helen, Ferguson, Patricia, Finnie, Ross, Galbraith, Mr Sam, Gillon, Karen, Godman, Trish, Goldie, Miss Annabel, Gorrie, Donald, Grant, Rhoda, Gray, Iain, Harding, Mr Keith, Henry, Hugh, Home Robertson, Mr John, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Jenkins, Ian, Johnston, Nick, Johnstone, Alex, 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, McConnell, Mr Jack, McGrigor, Mr Jamie, McIntosh, Mrs Lyndsay, McLeish, Henry, McMahon, Mr Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Monteith, Mr Brian, 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, Scanlon, Mary, Scott, John, Scott, Tavish, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Smith, Margaret, Stone, Mr Jamie, Thomson, Elaine, Wallace, Ben, Wallace, Mr Jim, Whitefield, Karen, Wilson, Allan
Against: Adam, Brian, Campbell, Colin, Canavan, Dennis, Crawford, Bruce, Cunningham, Roseanna, Elder, Dorothy-Grace, Ewing, Dr Winnie, Ewing, Fergus, Ewing, Mrs Margaret, Fabiani, Linda, Gibson, Mr Kenneth, Grahame, Christine, Hyslop, Fiona, Ingram, Mr Adam, Lochhead, Richard, MacAskill, Mr Kenny, MacDonald, Ms Margo, Matheson, Michael, McGugan, Irene, McLeod, Fiona, Morgan, Alasdair, Paterson, Mr Gil, Quinan, Mr Lloyd, Robison, Shona, Ullrich, Kay, Welsh, Mr Andrew, White, Ms Sandra, Wilson, Andrew
Abstentions: Gallie, Phil

Photo of George Reid George Reid Scottish National Party

The result of the division is: For 76, Against 28, Abstentions 1.

Amendment 62 agreed to.