After section 18

Regulation of Investigatory Powers (Scotland) Bill: Stage 3 – in the Scottish Parliament at 11:00 am on 7th September 2000.

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Photo of George Reid George Reid Scottish National Party 11:00 am, 7th September 2000

We now come to amendment 8, which is grouped with amendments 8A, 8B and 9. I ask Christine Grahame to move amendment 8 and to speak to all the amendments in the group.

Photo of Christine Grahame Christine Grahame Scottish National Party

I hope that members will bear with me, as I have a lot to say about this amendment. I have battled long and hard and have gone through many hoops for Angus MacKay. I should at least get brownie points for persistence. I think that this is my third draft and, like Topsy, it has growed and growed. It has done so, however, in response to matters of concern that the minister raised about the main point of my amendment.

I should make it plain from the start that my amendment does not give carte blanche to inform all and sundry who have been under surveillance that such surveillance has happened. Although I will see what Phil Gallie has to say about his amendments, I think that they are in the same spirit of mischief that he deplored in Gordon Jackson earlier. I have a feeling that Phil is not going to vote for my amendment anyway.

Members should bear with me as this is a long and complex amendment about civil liberties, which is a very serious matter. I will go through the amendment in some detail, as I know that members are all very busy people and will not have had the time to consider its various parts.

Subsection (1) of the amendment makes it mandatory to inform surveillance subjects. Perhaps members think that that will happen once a certificate has been quashed, ceases to have effect or is cancelled. Indeed, alarm bells might be ringing that all and sundry will be told. However, that is not the case. Subsection (3) of the amendment lists a whole lot of safeguards, including, in subsection (3)(d), the much-maligned catch-all safeguards that we have just got rid of in an earlier section.

Let us examine subsection (3). The recommendation to inform a former surveillance subject that surveillance has ended would not be given if it carried

"a significant risk of prejudice to any ongoing or future operation;" if it carried

"a significant risk of compromise to the techniques used in ongoing or future operations, or the general capabilities of the police or the National Criminal Intelligence Service to carry out such operations;" if it carried

"a significant risk to the personal safety of—

(i) any person authorised to carry out surveillance;

(ii) any covert human intelligence . . .; or

(iii) any person from whom information is obtained or access to information gained by such a source;" which might be the casual person to whom Ben Wallace referred; or the catch-all: if it did not pass

"any further test set out in regulations made by the Scottish Ministers."

That leaves the matter subject to positive affirmation by this Parliament.

Angus MacKay should be fair. I have tried to do everything in this amendment to build in protection for surveillance systems. However, I still think that there is room in this legislation to tell the wholly innocent party about surveillance.

Subsection (4) builds in a timetable for informing the person, which might not be of such significance. Subsection (5) introduces a method of informing a person that they have been under surveillance, and members will see that it is fairly restrictive. When it has been decided that a person ought to be told that they have been under surveillance because there was no reason for them to be under it, they are told

"(a) the period within which the authorisation had effect; and

(b) whether the authorisation was for intrusive surveillance, directed surveillance, or the use of a covert human intelligence source."

That is all that the person will be told.

Subsection (6) says that:

"It shall be the duty of any relevant public authority . . . to provide an ordinary Surveillance Commissioner" with any information that he or she requires.

My amendment contains many safeguards to ensure that when the commissioner makes up his mind about whether to advise the party that they have been under surveillance, he must be fully informed of all the facts. He would be able to postpone the decision for a six-month deferment period to ensure that he is able to take his time about the decision. Those safeguards are built in to provide protection for the state and the rights of the community as opposed to the rights of the individual.

Subsection (8) provides regulations on which amendment 9 is consequential.

In all the circumstances that I can foresee in practice, my amendment would apply only to a few subjects of surveillance when the authorisation had come to an end. Because of the protective subsections (3)(a) and (3)(b), the amendment would not apply to known felons and drug dealers even if the instance of surveillance—over however long a period—had delivered nothing. It would also not apply to the innocent friend of a known dealer who had been put under surveillance and been found to be unaware of their friend's nefarious activities. Again, that would be because of the protection of subsection (3), with its references to situations such as

"any ongoing or future operation".

However, the amendment would apply to the person who has been wrongly placed under surveillance but who has no connection with wrongdoers. Even then, though, the tests under subsection 3 would apply.

It was interesting to see Jim Wallace rise to speak instead of Ben Wallace when the name "Mr Wallace" was called out. As the bill stands, if a similar cock-up occurred during a surveillance operation and a person with the same name as a suspect was targeted, that person would not be told that they had been under surveillance.

I do not know how much more I can do to accommodate the deputy minister's concern. In that case, why am I bothering? Simply, because it is plainly right for the state, if it has erred and infringed an individual's liberties and privacy, to tell that person what has happened. In support of that view, I enlist the aid of Gordon Jackson's comments in the stage 1 debate. I am not quoting him, but he will agree that he said that if something is right, it is plainly right to do it.

The other reason that I am bothering is that I believe that the bill, unless amended, could be challenged under the European convention on human rights. Article 8 states:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

The key part in all of that is the word "necessary".

Subsection (2) of article 10, which deals with the exercise of freedom of expression, states:

"The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime".

Again, the test of what is necessary is important.

Professor Alan Miller of the Scottish Human Rights Centre said, in Holyrood magazine of 24 April 2000, that this bill is, in effect, the Scottish part of the UK Regulation of Investigatory Powers Bill that is currently proceeding through the House of Commons and attracting significant criticism regarding ECHR compatibility from within the legal profession and from human rights non-governmental organisations.

Giving evidence to the Justice and Home Affairs Committee, Professor Miller said:

"On the one hand, I do not think that the draft bill deserves excessive criticism."

I agree with that. He continued:

"It should be welcomed. Its stated aim is to provide a legal framework for police surveillance to attempt to achieve ECHR compatibility, so it will be an improvement on the present situation. I think that that is recognised by everyone. The draft bill tries to find a fair balance between individual privacy rights and the public interest.

On the other hand, we all know that, to all intents and purposes, this is a UK bill. We should be aware that the UK has a poor record on the issue of surveillance and ECHR compatibility. Members should also be aware that the ECHR is really only a safety net; it is the lowest common denominator among the states of the Council of Europe . . . Therefore, a certain amount of vigilance is required over the bill."—[Official Report, Justice and Home Affairs Committee, 10 May 2000; c 1208-09.]

The Law Society of Scotland has stated its concerns. A Law Society witness told the Justice and Home Affairs Committee:

"However, the right of privacy exists under the convention and if that right is invaded, there has been a violation . . . When that law comes"— he was referring to the RIP bill—

"there will be a need for some analogue of the regulation of investigative powers legislation in order to cope with private investigations into fraud or whatever."—[Official Report, Justice and Home Affairs Committee, 15 May 2000; c 1247.]

I also quote Gordon Jackson, speaking during the stage 2 debate—this is his starring role. I warned him of this, as it was only fair. I have not been cruelly selective; I think that this gives a fair flavour. I do not think that everybody wants to hear everything that he said, but I quote him from the Official Report of the Justice and Home Affairs Committee's meeting of 4 July.

"The bottom line is that there will be occasions where people are wrongly put under surveillance. I do not say that because of some conspiracy theory, but because that is simply the nature of such things: whether it is a cock-up, a conspiracy, a simple mistake or bad faith, it will be clear that certain people, over the years, should not have been put under surveillance."

Gordon went on to say that

"there is no reason why, when it is clearly discovered that a person has wrongly been put under surveillance, that person should not be told. That seems to be a reasonable and fair safeguard for the rights of the citizen. The presence of such a provision is likely to focus the mind as to when it is appropriate to conduct surveillance operations."

He continued:

"My point is very simple. There should be a provision in the legislation so that where it becomes clear after authorisation has been given that, for whatever reason, a citizen should not have been the subject of a surveillance operation, the system is open about it . . . As I said in the chamber, that is the nature of the modern world. I am against secrecy whose only purpose is to cover up a mistake that has been made . . . There are several ways in which provision could be made—I will not teach my granny"—

I think that Gordon was referring to the Minister for Justice

"to suck eggs. It could be done by spot checks, or the power to tell people could be given to the surveillance commissioner . . . There is any number of ways of dealing with this . . . I say that the purpose of such a provision is not to compromise operations or to help criminals, but to ensure that where someone has been put under surveillance wrongly, for whatever reason, they should be told that that has happened and it should go into the public domain. That would give the public the comfort of knowing that although the power of regulating serious powers is being given to law enforcement agencies, if someone is wrongly surveilled that fact will become public and will not remain a secret. I do not think that it is impossible to strike a balance here. I hope that the Executive will introduce such a provision before we have to argue this matter seriously in the chamber."

In correspondence with Angus MacKay, I have tried to achieve that, and I think that I have come to the bottom line. My view now is that the minister is simply opposed in principle to cases of wrong surveillance becoming public.

I also quote Scott Barrie, speaking in the same stage 2 debate. He said:

"I have a great deal of sympathy with what Christine Grahame has tried to do. I am not sure that I would have voted for her amendment, because it is too wide-ranging".

Well, it ain't wide-ranging now, Scott.

Euan Robson said:

"The minister will agree that there is a degree of cross-party concern on this point. Almost all of us are concerned that the tribunal will have very little work because people will not know that they have been the subject of surveillance."—[Official Report, Justice and Home Affairs Committee, 4 July 2000; c 1556-57.]

Those comments were made at stage 2, which is a much happier place than stage 3.

Photo of Pauline McNeill Pauline McNeill Labour 11:15 am, 7th September 2000

I do not know whether Christine Grahame was going to go on to name me, but she has named several members of the Justice and Home Affairs Committee and has quoted them. Other than the points raised by the committee members, does Christine feel that strong evidence was given by witnesses to the committee on her points about amendments?

Photo of Christine Grahame Christine Grahame Scottish National Party

I do not think that the police witnesses were terribly interested in the line that I was taking, but we must remember that the bill does not just deal with criminal investigations and drugs; it deals with public disorder and other issues. As I said earlier, I foresee that notifying people of surveillance would be more likely to happen in those circumstances where entirely innocent individuals are also involved. The problems raised by the surveillance of known felons whose associates and families are unaware of their activities are provided for under my amendment. The police witnesses focused mostly on criminal activity, which is why I quoted Gordon Jackson at length.

A tribunal is referred to in section 19. However, I do not understand how a person who has been under surveillance can use that tribunal to make a complaint. The tribunal is concerned with procedure and is a creature of the UK, operating under UK regulations. I received a letter from Angus MacKay on 28 August, when I addressed this matter. He wrote:

"I do, however, continue to have a fundamental objection to the principle on which your amendment is based, namely that there should be a duty in each and every case, irrespective of whether the surveillance was properly authorised and carried out in accordance with the appropriate code of practice, to disclose the fact of that surveillance unless the authorising officer perceives a significant risk in doing so."

That is not fair to my amendment, and reduces considerably the number of people who might be notified.

In the same letter, he says:

"You say that your proposal would be more efficient than relying on the tribunal to disclose to people who had a suspicion that surveillance had taken place. Although the rules for the tribunal's operation have not yet been finalised, it is clear that the tribunal will not allow fishing expeditions. In other words the tribunal will not confirm to someone that surveillance had taken or was taking place unless there was a case to consider."

How on earth—apart from tumbling over the infamous binocular man in the lupins—will someone ever get a tribunal to find out about surveillance? A suspicion will not clear it. The tribunal is a red herring of democracy.

At the meeting of the Justice and Home Affairs Committee yesterday, I listened carefully to Jim Wallace's views on an open and democratic Scotland. He spoke about that in the context of the future freedom of information bill. This information on surveillance is not going to be available to anybody, and that does not reflect an open and democratic Scotland. I want the Liberal Democrats to consider that, as their party has a fine record on civil liberties issues.

This is a free vote for the SNP. I hope that it is a free vote for the other parties. These are serious arguments. I hope that it is not the case that we are not going to consider this issue seriously because the new English legislation does not consider it. I am not charging the Executive with that, but I hope that—as it did earlier, for the smaller but nevertheless important issue of the catch-all subsection—the Parliament will consider this matter in the context of Scottish democracy. Recognising the openness and all the safeguards that I have built into it, I ask the Parliament to give amendment 8 a fair wind.

I move amendment 8.

Photo of Phil Gallie Phil Gallie Conservative

Amendment 8A will not be moved. I feel deeply chagrined by Christine Grahame's suggestion that I would be mischievous on this subject. However, I would be concerned about somebody receiving an epistle through the post that was sparse in information, telling them that they were under surveillance. That might do an individual more harm than good.

Amendments 8A and 8B not moved.

Photo of Angus MacKay Angus MacKay Labour

I want to make three comments, and begin by taking up the argument where Christine Grahame finished. I do not think that anyone could say that we are not going to have or have not had an appropriate and full debate on this issue. At each stage of the legislation it has been the most topical and salient of the issues the committee has wanted to discuss and I suspect that it will form the meat of the serious discussion in today's stage 3 debate. I do not think that anyone could say that we have not fully considered the issue.

I want to make clear that the Executive opposes Christine Grahame's amendments. I also want to make clear that I appreciate and understand that Christine has made a number of genuine attempts to bring forward an evolved amendment to address concerns raised by all parties in the course of considering the bill. At earlier stages I said that I am not hostile to the attempt to address those concerns, which are difficult to address because they are about a point of conflict between two things—the protection of civil liberties and the requirement that law enforcement agencies can properly and effectively carry out their work. Where those two things meet is a difficult point. I should also put on record the attempts made by members of other parties to wrestle with the issue in trying to develop an amendment that satisfies all the concerns. I am sure we will hear from other members in the debate.

The amendments in Christine Grahame's name are the latest in a series on the subject, each of which has been fully debated. I am aware that amendment 8 has been drafted to meet many of the practical objections that were raised to earlier versions, in particular the lack of safeguards, and I acknowledge that it is clearly an improvement in that respect. However, it remains the case, as Christine has highlighted, that it is based on a premise that the Executive cannot support. Beyond that, there are further practical defects that mean that it would be difficult to operate.

On the question of principle, Christine Grahame is familiar with the arguments, as I have corresponded with her over the recess. Nevertheless, the arguments should be on the record, as is Christine's viewpoint. The fundamental objection the Executive has is that the amendment specifies a duty in each and every case, irrespective of whether the surveillance was properly authorised and carried out in accordance with the appropriate code of practice, to disclose the fact of that surveillance unless the authorising officer perceives a significant risk in doing so. We believe that that would create an anomalous position when compared to other investigation techniques used by the police. The police have a duty to make all due inquiries about crime that could, for example, include seeking relevant details about suspects from other public authorities or financial institutions or perhaps putting in place a telephone intercept. In none of those cases are the police required to disclose the fact of their inquiries to the subject of them even if nothing untoward has been found. Furthermore, the police argue—we believe rightly—that to disclose in even limited circumstances how and when they might use particular techniques would, in the long run, work to the benefit of criminals rather than society generally. The use of surveillance or human sources is not different in that respect, in our view, from other methods.

Secondly, it is inevitable, despite the safeguards put in place beforehand—and many have been built into Christine's amendment—that a requirement to disclose, unless in certain circumstances, will lead to cases where it will be seen in retrospect that disclosure has helped criminals to evade justice. That is because a police officer may well take the view that there is a risk to operations, but not a significant risk as required by the amendment. But of course, he or she cannot see into the future: the risk may subsequently materialise. In our judgment, the risk that operations could be compromised could also lead to other law enforcement agencies declining to work with Scottish police forces.

I have one final point on the principle. We believe that the amendments are unnecessary because we are putting into the structure of the bill a robust system of oversight to ensure that the powers in the bill are not abused. There is the system of chief, ordinary and assistant surveillance commissioners, who will all have judicial experience and who will all have staff to assist them as required.

I have described three reasons why we consider the principle of the amendments inappropriate. There are also, as I mentioned at the outset, some practical points that would make the amendments difficult to operate. First, amendment 8 provides for a number of circumstances in which disclosure should not be made; but, as I understand the reading of it, amendment 8 does not include the situation in which surveillance has uncovered evidence of wrong-doing. The situation could therefore arise where evidence of crime was found and arrests and charges were pending, but because no further operations were planned against the target, there might be a requirement to disclose the surveillance to the suspect. I appreciate that that defect could be fixed by means of the further test that is referred to in subsection (3)(d) in amendment 8; but that illustrates the difficulties in seeking to prescribe in legislation the time when it becomes safe to reveal the use of particular law enforcement techniques.

A much more serious difficulty arises with the use of the term "significant risk" in amendment 8. We are sure that that would give rise to problems in interpretation. It would be extremely difficult to define when a risk became a significant risk. Furthermore, I am unable to agree that the same test of significant risk should apply to the security of operations and to personnel. In the Executive's view, it is right to consider that even a slight risk to the safety of people who volunteer to work in dangerous circumstances should be avoided if possible.

There are a number of practical problems with this amendment. I am sure that we could have attempted to fix some of them, although we believe that this will always be an area where it will be difficult to anticipate, properly and effectively, all the possible circumstances that might arise. More important, we cannot, as I have already stated, support the principle that disclosure must be considered in every case where surveillance has been properly authorised and carried out. I therefore call—pointlessly, I think—on Ms Grahame to withdraw amendment 8.

Photo of Dennis Canavan Dennis Canavan Independent 11:30 am, 7th September 2000

I support amendment 8. The bill purports to strike a balance between individuals' rights of privacy and the interests—including the security interests—of the wider community. If there is no further reason for surveillance of a particular person, that person should surely have the right to know that he or she had been under surveillance, provided, of course, that there is no risk to any other person. Christine Grahame's amendment contains sufficient safeguards to ensure that there is little, if any, risk to any other person.

There have been some famous—or infamous—cases of people who have been under surveillance by the state. It is reported that even the present Home Secretary and the present Secretary of State for Northern Ireland were under some form of surveillance in their youth, although it is very difficult for us now to comprehend how on earth Jack Straw or Peter Mandelson could be classified as left-wing extremists. Allegations were also made during industrial disputes in the 1980s—particularly during the miners' strike of 1984-85—that miners' leaders were under surveillance through telephone tapping. Even well after the event, we are entitled to an explanation. Some of the reports may have been false, some may have been true. Perhaps the minister could enlighten us this afternoon.

Is it a fact that during the miners' strike the telephone of the late Mick McGahey, for example, was tapped? Were the telephones of any of the other strike leaders tapped, either in their offices or in their homes? In retrospect, many of us can see that the strike was about an honest group of trade unionists trying desperately to save their industry from extinction, but at that time in Scottish and British industrial history many of them were classified as enemies of the state. The police and, perhaps, other security forces were using covert means to get information to break the strike.

Photo of Ben Wallace Ben Wallace Conservative

I do not dispute some of Mr Canavan's observations, but—and the minister may be able to clarify this—what he is talking about would be considered subversion and would be covered by the security services. Under security services legislation, people who have been under surveillance have a right to be informed of that. The period that has to elapse before that can happen is perhaps too long, but that can be changed. Such surveillance is not criminal and is not covered by this bill. Subversion comes under security service legislation, people have a right to be informed of whether they have been under surveillance, and the situation is reviewed on a 10-yearly basis.

Photo of Dennis Canavan Dennis Canavan Independent

I read the bill as meaning that the authorities can authorise a surveillance order if they perceive there to be a threat of disorder. At the time of the miners' strike there were perceived threats, real or imaginary, of disorder. My fear is that this legislation could be used if similar circumstances ever arose. When the surveillance order is no longer applicable and the authorities admit that there is no further reason for it, the person who has been the subject of that order ought to have the right to know that he or she has been under surveillance.

In summing up, can the minister tell us who at ministerial level has access to information about people who were wrongly under surveillance some time ago during industrial disputes? At the time of the miners' strike, for example, I understand that the Secretary of State for Scotland was required to authorise telephone tapping. Where is that information now? Where is the list of people whose telephones were tapped? Is it in the Scotland Office or the Scottish Executive? Does the Minister for Justice have access to it? Does John Reid have access to it? Will the Scottish Executive be more forthcoming about telling us what went on at that critical time in Scottish industrial history?

The new Scottish Parliament is supposed to herald an era of openness, democracy and accountability, including freedom of information. We hear Executive ministers, particularly Liberal Democrats, trumpeting the desirability of freedom of information. Innocent people should have the right to know whether, why and how they were under surveillance. The state is the servant of the people and, if it makes an error, it should be big enough to admit to that and to inform the people who were wronged.

Photo of George Reid George Reid Scottish National Party

I have no wish to curtail debate on this important subject, but if we finish by 12 o'clock I will take the full half-hour debate at that point. About five or six members have indicated that they wish to speak.

Photo of Scott Barrie Scott Barrie Labour

I am glad that I pressed my button to speak before I was named, and perhaps shamed, by Christine Grahame for what I said at stage 2. Her quotes from the Official Report are quite accurate. She might have gone on to say that I made similar comments in the stage 1 debate.

Christine Grahame should be congratulated on introducing a series of amendments on this important subject. She did not press her previous amendment to a vote in committee because she agreed to take it back and consider it further. Members have said that these issues strike at the heart of the bill, which is concerned with the civil liberties of our citizens versus the duties and responsibilities of the state to detect and prevent crime.

The Deputy Minister for Justice has already indicated the Executive's desire not to impede the detection and prevention of crime. Although Christine Grahame has moved a long way from the position of her original amendment, including many caveats, the new amendment does not go far enough.

I approached the subject clear in my own mind—I thought that it would be relatively straightforward to include the provisos that Dennis Canavan has just mentioned. At the beginning of the summer I intended to lodge an amendment to that effect but, unlike Christine Grahame, I was unable to come up with a form of words. As I thought through the matter it became increasingly difficult. In essence, it is something that most of us would want to do, but in reality it is something that is very difficult to achieve. That is why I think that it would be better to support the comments that Angus MacKay made this morning.

However, Christine Grahame pointed out that if the amendment was not accepted, we might be open to a challenge under the European convention on human rights. I ask the minister to make explicit what legal advice has been given, whether we are open to such a challenge and whether the Executive is totally confident that the measure is robust.

Photo of Gordon Jackson Gordon Jackson Labour

Christine Grahame has quoted my comments at stage 2 at some length. I neither depart from those comments nor apologise for them. I said that where a surveillance operation has been wrongly carried out, the person who had been under surveillance should be told. A very strong part of me believes that; in an ideal world, that is what I would like to happen. Secrecy should not be used to hide mistakes made by the state. Given that perspective, I was anxious to achieve something in this legislation that would bring that ideal into practice. I made that clear in the committee and I have made it clear to Angus MacKay and Jim Wallace on several occasions.

No one could have tried harder than Christine Grahame—I hope that she will accept this comment in the spirit that it is given—to achieve that end. However, that is where the problem lies. Having wanted to achieve that end, one had to turn the coin in this balancing exercise and recognise that there are reasons for not doing so.

I am not here to repeat what the minister says, but some of those reasons are very powerful. The amendment would create an anomalous situation. The police carry out all sorts of investigations every day. They do not have a policy of telling the subjects of those investigations what they are doing. I accept that that is different, but it is not that different. There are practical difficulties raised by the amendment. Every authorisation for surveillance would need to be reviewed in detail retrospectively. The fact that it would create a huge mountain of work is not a reason not to do something, but it would certainly place a tremendous burden on the system.

However, most important, there are some very serious and very bad people out there—

Photo of Gordon Jackson Gordon Jackson Labour 11:45 am, 7th September 2000

Unlike the people in here who are bad, the bad people out there are also very sophisticated. Inevitably, such people will make use of the provision created by Christine Grahame's amendment. They will take comfort from it. Whenever the authorities are forced to reveal details of their operations, people who have a bad agenda will use that for their own purposes. That is why, not without reluctance and with a great deal of hesitation, and having made my position clear at stage 2, I have come down on the side of saying that Christine Grahame's provision is not workable. I say to her that, in fairness, I did say at stage 1 that I had no concluded view and that it was a difficult matter.

It is a question of balance, and we have done well in striking it. For example, with the Executive's agreement we took out the catch-all provision. That was important. Dennis Canavan talked about surveillance situations that people should now know about, but what we have tried to do is stop those situations happening in the first place. It may be said that we will not be successful in that, but we have tried. We have made sure that we have Scottish judges as Scottish surveillance commissioners. The balance has to be that these operations take place and are not revealed thereafter. Part of me does not like that, but in this world we live in these balances have to be struck. I have come to the view that we should proceed in the way in which the Executive is suggesting.

Photo of Dorothy-Grace Elder Dorothy-Grace Elder Independent

I counsel caution—from the way in which the minister has presented this matter, that seems sensible. The proposal in the bill is dangerous, which is why I commend Christine Grahame's amendment. The concern involves the grey areas where state security services can claim that serious criminality is behind something, when it is not that at all, but just red meat politics. People may be snooping and spying on those on whom they should not snoop and spy, such as trade unionists.

Like Dennis Canavan, I would like to know the truth about telephone tapping of the late Mick McGahey, whom I knew. He was an honest man who stood up for his miners. There have been umpteen stories over the years about McGahey's phone being tapped—and, indeed, the phones of other trade union leaders in Scotland. We do not accept that that should happen just because of a person's position, which is why we must know the truth, even from the past.

Mr Canavan mentioned Jack Straw, whom he said could hardly be regarded as a great left-wing threat. Of course, at one stage Jack Straw was regarded as such. Some of us remember when he was a rebellious student leader. That was at a time of rampant paranoia about people getting their phones tapped; everybody in student circles was alleging it. I remember saying that the ultimate humiliation would be if we found out that our phone was not tapped because we were not that important. We all remember what Mr Straw was like. Of course, he changed his coat when he acquired a high position in Mr Blair's Government—a Government that has allowed more phones to be tapped than any other Government in recent decades.

Photo of Pauline McNeill Pauline McNeill Labour

I, too, want to put on record my feelings about the history of the 1970s and 1980s, phone tapping and civil liberties issues. There is a long list of people, such as Campbell Christie, who took their cases to the European Court of Human Rights. I want clarification on how Christine Grahame's amendment would give rights to this Parliament or allow Mick McGahey to know whether his phone was tapped, given that we are not dealing with telecommunications.

Photo of Dorothy-Grace Elder Dorothy-Grace Elder Independent

Unfortunately, the late Mick McGahey and many of his generation are not around to know the truth. However, retrospectively, even a long period afterwards, revelations should be made about the phone tapping of people who have not faced criminal charges. The minister's proposition is dangerous, and I support Christine Grahame, who eloquently and sensibly put a case that upholds civil liberties.

Photo of John McAllion John McAllion Labour

Dorothy-Grace Elder must be older than she looks if she can remember the time when Jack Straw was a left-wing threat to anyone. I have been in the Labour party a long time, but I am not that old.

I ask the minister to assure us that there is no disagreement in principle with what the amendment seeks to do. If the Executive and the Parliament have learned anything from their first year, surely they have learned that mistakes will be made and errors will occur. It is a fact that people who are wholly innocent will be subjected to unjustified official surveillance. We have to accept that that will happen. I want the Executive to make it clear to the Parliament that it thinks that it is wrong for that to happen. If practical, such people should have the right to know that they have been subjected unfairly to surveillance.

I realise that the important words there are "if practical". The minister outlined the practical objections, some of which I agree with. However, the fact that there are anomalies—people have the right to know about this technique but not that technique—is not an argument for not extending the right to know. The right should be extended to cover all the techniques that are used by the police forces in this country.

I take on board the view that, if the exercising of such a right represents a risk to operations in any way, it would be unwise for the Parliament or the Executive to allow that to happen. However, I hope that at the end of the debate the minister will say that what is perceived to be a risk to operations will be under continual review and that, if someone comes up with a way of guaranteeing the security of police operations while giving people the right to know that they have been under surveillance, we will ensure that that happens.

It is important that the Parliament understands the implications of the European convention on human rights. If a challenge is made to what the Parliament is enacting this morning, we should be aware of what the chances are that the European Court of Human Rights will uphold an appeal made by someone who has been denied the rights that we are discussing. I hope that the minister will deal with that.

Finally, I was interested in Christine Grahame's reference to Professor Miller's comment that the UK's record on disclosure and human rights is weak and one of the worst in Europe. Will the monarchists among us reflect that that may be the case because, unlike the residents of other countries in Europe, we are not citizens but subjects of a constitutional monarchy? Perhaps the fundamental change that the Parliament should be considering, possibly in liaison with the Parliament south of the border, is how we can move to become real citizens—like people in the rest of Europe—instead of subjects.

Photo of Euan Robson Euan Robson Liberal Democrat

This is potentially the most difficult area in the bill. I suspect that, when we vote that the bill be passed—as I hope we will later today—there will be some omissions. We cannot get everything right in one go, because—as I understand it—this is the first time that such a framework covering investigatory authorities and powers has been introduced.

There is a tension between the need to survey criminals and the rights of the individual, but the amendment does not deliver what is necessary. If someone has been wrongly surveyed, ideally they should be told. However, there is another element to this. I have yet to make up my mind whether, if surveillance has taken place but there has been no harm or prejudice to the person involved, it is sensible or relevant to alert them to the situation.

My key objection to the amendment, however, is that the wrong person has been identified as triggering the process that would lead to disclosure to the individual concerned. The authorising officer would be told to review what they had done and, if they had done something wrong, they would have to institute a process that would lead to the disclosure to the individual. Surely the person who should take that action is the surveillance commissioner, who should act in a regulatory capacity, as it were, in order to review the actions of the authorising officers. Members would have welcomed the incorporation of such a provision into the bill if we had been able to find a proper mechanism for so doing. Had we done so, the focus—the fulcrum—would have been the surveillance commissioner, who should have undertaken those duties and who should have been given those responsibilities. As I understand the amendment, the person who made the mistake in the first instance is the one who is being asked to trigger the process. Perhaps the authorising officer would take that action quite readily if a genuine error has been made. However, if there has been duplicity or connivance on the part of the authorising officer, is it likely that that officer would refer himself or herself to the surveillance commissioner?

I believe that this well-intentioned amendment is seriously defective in that regard, as well as in terms of the practical points made by Angus MacKay. Although a mechanism for protecting the individual would have been welcome, had we been able to find one, I do not think that the amendment delivers what members want.

Photo of Pauline McNeill Pauline McNeill Labour

Like other members, I support the aims that Christine Grahame is trying to achieve with her amendment and I congratulate her on the work that she has done. However, on balance, a number of factors lead me to believe that I cannot support the amendment.

Emphasis must be placed on the importance of granting authorisation and on the rigorous tests that should take place before authorisation is granted in the first place. Both Dennis Canavan and Dorothy-Grace Elder mentioned telecommunications; it is important to stress that we are not dealing with telecommunications today—there has been some confusion on that point. Christine Grahame's amendment, even if we were to accept it, would not give any of us the right to know that our telephone had been tapped. Perhaps that is a debate for another day.

I want the minister to respond in the strongest terms to a number of points. The question that must be asked about the cases to which Dennis Canavan and Dorothy-Grace Elder referred is why authorisation was given in the first place. I draw members' attention to other issues that the bill raises, which the Justice and Home Affairs Committee examined in great detail, including our concern about civil liberties. Alan Miller pointed to the categories for surveillance, such as public order and public safety. In particular, he drew our attention to the bill's inclusion of the category of people who gather together for a "common purpose", which could include trade unionists. The granting of authorisation must be of the highest order for everything else to fall into place.

Phil Gallie mentioned informing people that they had been under surveillance. That raises the question whether people should be told why they had been under surveillance. An individual would certainly want to know more than the simple fact that they had been under surveillance. That leads me to believe that informing people is a difficult issue to resolve in legislation. Should people be told why? Should they be told what kind of surveillance they were under?

I still wonder whether the bill should include the category of "wrong person". By that I mean the circumstances in which surveillance is granted for person A but is, in fact, carried out on person B. However, amendment 8 does not address that issue. Records on anyone who has been placed under surveillance wrongly must be destroyed. Any individual would want to know that that had been done. Euan Robson made the point in committee that such action should not be discretionary—it should be an absolute must.

Although the minister does not accept Christine Grahame's amendment, it would be useful if, in replying to the debate, he would explain how the bill balances the rights of the individual with the needs of the state. All members of the Justice and Home Affairs Committee showed a great willingness to try to find a solution to that problem, as did the minister. There is only a tiny difference between us, but we do not think that such a solution can be reached.

Photo of George Reid George Reid Scottish National Party 12:00 pm, 7th September 2000

Of course, it is not the minister who will be responding; Christine Grahame will have the last word, because amendment 8 is her amendment. Nevertheless, I shall allow the minister to have another cut before asking Christine Grahame to respond.

Photo of Angus MacKay Angus MacKay Labour

Thank you, Presiding Officer. I would like to reply briefly to a number of concerns that have been raised by members from all parts of the chamber.

Throughout the passage of the bill, we have attempted to be sympathetic on this issue. I am on record as stating my willingness to listen to arguments about how we might be able to proceed in this area. I have met any member who wanted to meet me to discuss face to face the substance of the issues and the detail of the amendments, and we have engaged in detailed correspondence.

The problem is that nobody has, as yet, found a satisfactory way of addressing in legislation the concerns that have been raised that does not run counter to the other concerns that I have outlined. It is with regret that the Executive has arrived at this position but, having tried to satisfy those concerns, we find ourselves unable to do so. For the reasons that I outlined, we believe that Christine Grahame's amendment does not satisfactorily do so either.

The Executive, the Parliament and the Presiding Officer's office are required to ensure that any legislation, policy or practice that we pursue is ECHR compliant, and we believe that we are in that position. Ultimately, that compliance can be tested only by the courts, but we believe that what we are proposing is ECHR compliant.

As Pauline McNeill has pointed out, the bill does not cover telephone interception, so I ask members to focus on what this legislation is intended to enable police forces to do rather than on wider issues.

Members must bear in mind the fact that today we are setting in statute for the first time procedures that are already routinely used by law enforcement agencies, but without the force of statutory regulation. The whole bill is precisely about protecting civil rights and about ensuring that the enforcement agencies, when they use surveillance techniques, do so in compliance with legislation, codes of guidance and the ECHR. In formulating the legislation, we must strike a balance between what constitutes appropriate civil liberties and what constitutes appropriate law enforcement. We have sought to do that at every turn and I genuinely believe that we have struck a balance that we can be confident will serve us well in the future.

Photo of Christine Grahame Christine Grahame Scottish National Party

I knew which way the wind would blow from the moment I stood up to speak. It may not be the point of the exercise, but I shall be interested to see how many members will break ranks and vote for my amendment.

Angus MacKay raised the issue of significant risk. The test of significant risk rests with the authorising officer, so a disclosure will not get past him if he thinks that there is a significant risk.

John McAllion made some valid points. Of course the wrong people will be put under surveillance for the wrong reasons, but they will not be told about it. There is no way of compromising on this. If John wants people who have wrongly been put under surveillance, and who should never have been put under surveillance in the first place, to be told about it, he must vote for the amendment. This is not something that he can fence; the Executive has never been prepared to move further on the matter.

The provision in my amendment to notify surveillance subjects would be triggered only when surveillance has been quashed, ceased or cancelled, and then only if no other investigations into criminal operations would be imperilled. It is nonsense to suggest that people would be notified otherwise.

Dennis Canavan mentioned political figures, and his point was quite right. It is a bit of a red herring to keep talking about serious criminals, felons and heavy-duty drug dealers in relation to the bill. Of course the bill deals with the activities of such people, but it also deals with what might be considered criminal activity in relation to public order as defined by the authorising agencies. He is right to say that other activities such as industrial and political activity or demonstrations could come within the remit of the bill.

I do not know what else I could have done to satisfy Scott Barrie's concerns. I have put everything possible into my amendment, including a catch-all and all the safety guards that I could have included, to ensure that the state is not imperilled at all and the community's rights are given as much protection as possible.

Gordon Jackson will wait a long time if he wants to legislate in an ideal world. We are legislating in the real world. I shall quote the words that he used at stage 2. He said:

"There is any number of ways of dealing with this . . . I do not think that it is impossible to strike a balance".—[Official Report, Justice and Home Affairs Committee, 4 July 2000; c 1557.]

What has happened between stage 2 and today that he now finds it impossible to strike a balance? At stage 2, he said that he would not teach his granny to suck eggs and that he could think of all manner of ways of dealing with this problem. Did he put those suggestions to the Executive? Was he asked to do so? I have not seen any constructive attempt to bring forward an Executive amendment.

Photo of Gordon Jackson Gordon Jackson Labour

Does Christine Grahame accept that we found it impossible to come up with a solution? There are occasions on which one says, "I believe that we can achieve this." We tried to do so in good faith. Angus MacKay would say that we tried to the point of trying where we could try no more. Other people tried—Scott Barrie tried and Pauline McNeill tried. Christine Grahame should not suggest that this was not an exercise in good faith on our part. We came to the genuine conclusion that the balance lay the other way. Sometimes people have to admit that they cannot achieve what they had hoped to achieve.

Photo of Christine Grahame Christine Grahame Scottish National Party

I take it Gordon Jackson is saying that there are not any number of ways of dealing with this, which was his position at stage 2. It is not his position any more. I cannot argue if he has changed his mind.

Euan Robson used the word criminals again, which I think is misleading. The amendment is not directed at the real criminality that is under surveillance. He also, intriguingly, asked what the problem was if somebody had been under surveillance and no harm or prejudice had come to them. If my privacy has been invaded, I consider that harm or prejudice has been done to me. I do not want people opening my mail, listening to my telephone conversations and looking through long lenses at me and my cats. I have real problems with that.

Photo of Euan Robson Euan Robson Liberal Democrat

Those are circumstance where definite harm is being done to someone. In some circumstances, it is difficult to say that any distinctive harm has been done to someone as a result of them being followed or watched.

Will Christine Grahame also address the point about the authorising officer being the person who triggers the process?

Photo of Christine Grahame Christine Grahame Scottish National Party

If Euan Robson would not be unhappy that people had followed him without him knowing, that is okay for him. I would be unhappy about it.

Euan Robson's other point is that the wrong person would be making the decision. Why did he not discuss that with me, if that is his major objection to the amendment? I was open to listening to people's arguments and he never discussed that with me. The amendment is fine as it stands.

I will ask Angus MacKay a final question. Who on earth will apply to the tribunal if they feel that there is a complaint about procedure? I would like an example—we failed to get an example on the miscellaneous and the catch-all.

Photo of Angus MacKay Angus MacKay Labour

Anybody who is being brought before a court of law in which evidence is being used that was gathered under the provisions of the bill.

Photo of Christine Grahame Christine Grahame Scottish National Party

So it would not be somebody who had been under surveillance and did not know about it—they would not be able to come before the tribunal?

Photo of Angus MacKay Angus MacKay Labour

Any other person who is concerned that they have been the subject of surveillance, as provided for under the bill, can raise the concern with the commissioners and the tribunal and every complaint will be examined. That is not to say that information will be disclosed, but every complaint will be examined.

Photo of Christine Grahame Christine Grahame Scottish National Party

That does not satisfy me. Angus MacKay has already said that there will be no fishing expeditions, so it will always be in the hands of the authority to say that there has not been surveillance. The person will never know.

Photo of Angus MacKay Angus MacKay Labour

There will be no fishing expeditions for criminals who might seek to clarify whether they have been the subjects of surveillance. If a criminal in that circumstance applies to find out whether they have been under surveillance improperly, the appropriate structure would examine that complaint and report back that the complaint was either founded or not founded. We will not allow fishing expeditions through records, which would tell criminals whether they have been the subjects of surveillance and, if so, how.

Photo of Christine Grahame Christine Grahame Scottish National Party

I am grateful for that clarification, because that was not in the minister's letter to me. The letter states:

"Although the rules for the tribunal's operation have not yet been finalised, it is clear that the tribunal will not allow fishing expeditions."

It does not say "for criminals", just "fishing expeditions".

I will press my amendment.

Photo of George Reid George Reid Scottish National Party

The question is, that amendment 8, in the name of Christine Grahame, be agreed to. Are we agreed?



Division number 3

For: 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, Hamilton, Mr Duncan, Harper, Robin, 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
Against: Aitken, Bill, Alexander, Ms Wendy, 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, Gallie, Phil, 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, McLetchie, David, McMahon, Mr Michael, McNeil, Mr Duncan, McNulty, Des, Monteith, Mr Brian, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Mundell, David, 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, Stone, Mr Jamie, Thomson, Elaine, Tosh, Mr Murray, Wallace, Ben, Wallace, Mr Jim, Whitefield, Karen, Wilson, Allan

Photo of George Reid George Reid Scottish National Party

The result of the division is: For 30, Against 79, Abstentions 0.

Amendment 8 disagreed to.