On learning of the breaches in the summer, the Scottish Government contacted Police Scotland to seek reassurance that it would co-operate fully with the IOCCO investigation and that it would take any necessary actions that might result from it.
That reassurance was given and, since July, Police Scotland has been working on a robust action plan to ensure that there has been no repeat of those incidents and that they cannot happen again in the future. However, it is clear that Police Scotland’s actions in accessing communications data have fallen short of the standard expected, and I welcome last week’s announcement by the Scottish Police Authority that it would ask Her Majesty’s inspectorate of constabulary in Scotland to review the robustness of the procedures around Police Scotland’s counter-corruption practices.
I can reassure the chamber that that will be an independent, thorough and in-depth review. In order to provide assurance to the public and this Parliament, it will focus on operational effectiveness and efficiency, the independence of the internal investigation function, governance and accountability, and training and guidance for officers and staff. The review will be submitted to the Scottish Police Authority and laid in the Parliament in the spring, and I expect any HMICS recommendations for improvements to be implemented in full.
Any breach of the “Acquisition and Disclosure of Communications Data Code of Practice” is unacceptable. A free press is the cornerstone of a healthy democracy, and we are committed to protecting the privacy of all law-abiding members of the public, including journalists.
In his statement on spying in September, the cabinet secretary told the chamber that he had “no idea” who the police in Scotland were spying on. That is unlike the First Minister, who knew about claims that the police had recklessly used illegal surveillance on repeated occasions almost five months ago. It appears that only the public and the Scottish Parliament were kept in the dark.
Was the cabinet secretary kept in the dark as well? If he was not, how does he explain his previous answer to the Parliament? Will he now take personal responsibility for ensuring that the numerous failures that there have been will not occur in the future on his watch?
As ever, the member has got a bit confused on these matters, because the response that I gave to Neil Findlay in September related to covert surveillance matters, which are entirely different from the issue that we are discussing and relate to historical matters as well, as the member will be aware.
In relation to his specific point about this matter, when we became aware of it in July of this year, we asked Police Scotland for assurances that it was complying with the investigation that IOCCO was undertaking. What is important is that we recognise that IOCCO is the independent judicially led body that is responsible for the oversight of this area of policing not just by Police Scotland but by all police forces across the UK and all public bodies that can exercise the powers in question.
What the investigation by IOCCO has demonstrated is that that oversight mechanism has identified failings in Police Scotland in making sure that it went through the proper process for undertaking such acquisition of communications data. IOCCO recognises that Police Scotland has put in place a robust process to ensure that this type of thing cannot happen again. A thorough process has been gone through. I recognise that what Police Scotland did in breaching the code was unacceptable, but we now have an assurance from IOCCO that it has a procedure in place that can prevent that from happening again in the future. It will clearly continue to keep that under review as it reviews the way in which such procedures are used by Police Scotland and every other police force in the United Kingdom.
I accept that IOCCO has done its job thoroughly. For years, in this Parliament, I have asked the cabinet secretary to ensure that proper governance, accountability and oversight are in place for the new national police force. However, that has been rebutted by the Government with some energy. Will he now accept that there is not sufficient governance in place and ensure that it occurs?
The member seems to be getting himself even more confused on the issue. The governance and oversight of this area of reserved legislation is with IOCCO, which was put in place by a Labour Government to ensure that the public bodies that had these powers were being held to account. That is exactly what IOCCO is there for.
I do not know whether the member is suggesting that we should get rid of IOCCO. If so, it is for the UK Government to get rid of IOCCO and replace it with something else. There is currently a proposal for a new investigative powers framework that could include the merging of the different inspection and oversight regimes that we have in the UK. However, the oversight mechanism for this is not peculiar to Police Scotland, which is the impression that the member would like to give; it has applied to all police forces in Scotland. It is a robust mechanism that has identified failings and has put measures in place.
Given the member’s policing experience, I would not have thought that he would be as confused about the issue as he clearly is.
It is worth noting that the code of practice that was breached does not relate to the interception of communications nor to the acquisition or disclosure of the contents of communications. Therefore, it is more a technical breach. Notwithstanding that and the cabinet secretary’s comments, how can the public be reassured that the HMICS review will be both vigorous and independent?
As the member correctly points out, the case is to do with communications data rather than the interception of communications, which has ministerial oversight and requires ministerial authorisation.
The Scottish Police Authority has asked HMICS to undertake a review of the practices that are being followed by Police Scotland’s counter-corruption unit. As I have mentioned, that independent, thorough, in-depth review will look at operational effectiveness and efficiency, the independence of the internal investigation function, governance and accountability, and the training and guidance that is provided to staff. The review will be laid before the Parliament for all members to consider and I expect any recommendations to be fully implemented by Police Scotland.
What is still missing from the case is a proper explanation of who did this and why. We need a proper explanation to get the transparency that members of the public seek. Rather than reopen the investigation, Police Scotland tried to find the source of the leak, and I think that we need a proper explanation as to why that was allowed to happen. When does the cabinet secretary think that that explanation will come?
The breaches have been identified and IOCCO has written to the individuals who have been affected by them, informing them that they can now take the matter to the Investigatory Powers Tribunal. The tribunal will be responsible for looking at the extent of what the breaches implied for the individuals on whom they impacted and whether any recourse should be applied in those instances.
The member is right to say that it is important that the public—indeed, all of us—can have assurance about how the procedures have been implemented. IOCCO has accepted the action plan that has been taken forward by Police Scotland to prevent this from happening again and it will continue to have oversight of that. The Investigatory Powers Tribunal will now be responsible for deciding the extent of the breaches, how they applied to the individuals’ circumstances and on any compensation or other matters that should be applied as a result of the breaches.
I accept that the interception of communications is reserved. However, does the cabinet secretary share my despondency that the SPA, despite being responsible for the oversight of Police Scotland, has yet again been caught on the back foot and is reduced to admonishing Police Scotland after the fact and then asking HMICS to undertake an assurance review?
It is important to understand the process that investigatory powers legislation puts in place. The oversight function for the use of investigatory powers is a matter for IOCCO in this type of issue; it is not a matter for a third party such as the Scottish Police Authority.
When IOCCO identifies a breach in procedure, it is extremely important that the SPA considers what measures should be taken to address deficiencies. IOCCO confirmed that robust measures have been put in place to address the failings in Police Scotland in this instance.
What HMICS will now do, at the request of the SPA, is look at the wider issues to do with practice in the counter-corruption unit. That is exactly the area that is the SPA’s responsibility, and in undertaking the assurance review HMICS will look at the wider issues. It will not take over IOCCO’s oversight function, which involves reporting to the Prime Minister on issues for all forces in the United Kingdom.
Public concern is about a much wider issue than communications. The last time I asked the cabinet secretary whether undercover officers were spying on activists, he said:
“I have no idea.”—[Official Report, 22 September 2015; c 4.]
Given the revelations in the Sunday Herald over the past two weekends, will the cabinet secretary instruct a full independent inquiry into the role of undercover policing in Scotland? If not, are Scots the only people in mainland UK who are to be denied information and justice on an extremely important issue?
That is a different matter altogether. Labour members might be a bit confused about the issue. As I made clear, issues to do with covert surveillance are not a matter in which Scottish Government ministers are involved. In addition, the issues that the member raised relate to matters that involved officers in the Metropolitan Police Service and their work.
As I said to the member, if he has clear evidence of officers in Police Scotland or any of the legacy forces not complying with the procedures for the use of covert surveillance, I will be more than happy to consider it. However, as yet I have not received concrete evidence from the member that sets out breaches in relation to specific officers in Police Scotland or the legacy forces.
The Scottish Police Authority is the disciplinary authority for chief officer rank in Scotland. I welcome the inquiry and I do not doubt the impartiality of HMICS. Will the cabinet secretary tell us what status it will have in respect of discipline?
In relation to Police Scotland, the disciplinary authority for ranks below chief officer is the deputy chief constable. Does the cabinet secretary think that there is a conflict of interest in that regard if a misconduct or indeed a criminal inquiry is under way in relation to the matters that we are considering?
The member raised a number of interesting points, which are part of the reason for the HMICS review of how the counter-corruption unit has been operating in relation to accountability and oversight of mechanisms. The review could pick up on points that the member highlighted.
However, the matter will also go to the Investigatory Powers Tribunal, which will consider the extent of the impact on the individuals concerned—for those who choose to take the matter to the tribunal—and whether compensation should be provided to individuals. When that process has been completed, I expect the SPA and Police Scotland to consider whether further action is necessary. Given that a process is now in place and we know that one affected party has indicated a wish to take the matter to the IPT, we need to ensure that due process is completed and the issues fully investigated before further decisions are taken on disciplinary matters.
However, the member raised important points, which no doubt HMICS will consider in the course of its investigation.
On a point of order, Presiding Officer.
Under the standing orders, will the minister correct the record? More than a week ago, 10 members of this Parliament wrote to him to raise specific concerns about the activities of undercover police in Scotland. Perhaps the minister’s civil servants have not advised him of that yet, but it has happened.
Secondly, any undercover operations in Scotland must be authorised by senior officers in the force area in which they are operating. I would have thought that the minister would have known that.
On a point of order, Presiding Officer. On 4 November, I wrote to you about the abuse of points of order by Neil Findlay and, on 18 November, you wrote back to me. It seems to me that if one member continues to abuse the system in this way, unless action is taken against that member, it just encourages all other members to do the same.