To ask the Scottish Executive, further to the answers to questions S2W-16495 S2W-16933 and S2W-16934 by Cathy Jamieson and Colin Boyd on 23 May, 8 June and 9 June 2005, how it reconciles its assertion in the answer to question S2W-16495 that the matters contained in the draft Framework Decision on the retention of data processed and stored in connection with the provision of publicly available electronic communications services or data on public communications networks for the purpose of prevention, investigation, detection and prosecution of crime and criminal offences including terrorism are reserved to the UK Government, with statements in its answer to question S2W-16934 that criminal investigation and procedure, including procedures for obtaining warrants, are devolved and, in answer to question S2W-16933 that the implementation of instruments dealing with judicial co-operation which relate to devolved matters of criminal law and procedure will fall within devolved competence.

We have no difficulty in reconciling the answers given to S2W-16495 S2W-16933 and S2W-16934. While legislation in the general area of criminal law and procedure is devolved under the Scotland Act 1998, the subject matter of the current draft Framework Decision on data retention falls within the reserved area of telecommunications and wireless telegraphy under schedule 5 to that act. The extent to which changes to criminal procedure are required will be considered in detail when implementing the Framework Decision, as will the reserved/devolved divide in relation to those changes. In view of section 29(3) of the Scotland Act, the creation of procedural rules specific to the Framework Decision – if any are required - may be reserved. However, general rules of criminal procedure are devolved.