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Official Report to Be Forwarded to Them Should Give Notice at the Document Supply Centre JUSTICE AND HOME AFFAIRS COMMITTEE Wednesday 8 November 2000 (Morning) £5.00 Parliamentary copyright. Scottish Parliamentary Corporate Body 2000. Applications for reproduction should be made in writing to the Copyright Unit, Her Majesty’s Stationery Office, St Clements House, 2-16 Colegate, Norwich NR3 1BQ Fax 01603 723000, which is administering the copyright on behalf of the Scottish Parliamentary Corporate Body. Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body by The Stationery Office Ltd. Her Majesty’s Stationery Office is independent of and separate from the company now trading as The Stationery Office Ltd, which is responsible for printing and publishing Scottish Parliamentary Corporate Body publications. CONTENTS Wednesday 8 November 2000 Col. SUBORDINATE LEGISLATION.................................................................................................................. 1861 BARLINNIE PRISON (VISIT) .................................................................................................................... 1866 PETITIONS .......................................................................................................................................... 1874 JUSTICE AND HOME AFFAIRS COMMITTEE 32nd Meeting 2000, Session 1 CONVENER *Alasdair Morgan (Gallow ay and Upper Nithsdale) (SNP) DEPU TY CONVENER *Gordon Jac kson (Glasgow Govan) (Lab) COMMI TTEE MEMBERS *Scott Barrie (Dunfermline West) (Lab) *Phil Gallie (South of Scotland) (Con) *Christine Grahame (South of Scotland) (SNP) *Mrs Lyndsay McIntosh (Central Scotland) (Con) *Kate MacLean (Dundee West) (Lab) *Maureen Mac millan (Highlands and Islands) (Lab) Pauline McNeill (Glasgow Kelvin) (Lab) *Michael Matheson (Central Scotland) (SNP) *Euan Robson (Roxburgh and Berw ickshire) (LD) *attended THE FOLLOWING ALSO ATTENDED : Iain Gray (Deputy Minister for Justice) CLERK TO THE COMMITTE E Andrew Mylne SENIOR ASSISTANT CLERK Alison Taylor ASSISTANT CLERK Fiona Groves LOC ATION The Chamber 1861 8 NOVEMBER 2000 1862 Scottish Parliament The Deputy Minister for Justice (Iain Gray): The whole process will be reviewed by the commissioners. If they feel that the reasons Justice and Home Affairs demanded by the order do not provide them with Committee the information they require, they will report that to Scottish ministers and there will be an opportunity to make changes. In the case of renewal, Wednesday 8 November 2000 however, there has to be clear information about why the renewal is necessary. For any individual (Morning) case, the commissioners could withhold the authorisation if they felt that the reasons were not [THE CONVENER opened the meeting at 09:31] sufficient. The Convener: Moving on to the second Subordinate Legislation instrument, I was slightly concerned about the designation of who was able to authorise directed The Convener (Alasdair Morgan): The first surveillance in urgent cases. I notice that someone item on today’s agenda is subordinate legislation. as low as the rank of inspector can do that, which We have two instruments before us: the seems a fairly junior rank in the police force. Can Regulation of Investigatory Powers (Notification of you explain the reasoning behind that? Authorisations etc) (Scotland) Order 2000, which Iain Gray: The key is practicality. Under the must be decided under the affirmative procedure; order, inspectors are allowed to authorise directed and the Regulation of Investigatory Powers surveillance or the use of covert human resources (Prescription of Offices, Ranks and Positions) only when it is not reasonably practical to get (Scotland) Order 2000, which is subject to the authorisation from a more senior officer. That is a negative procedure. well-established test with regard to the urgency of The Deputy Minister for Justice, Iain Gray, is the case. Our concern is that urgent operations with us and has kindly agreed to take questions. If should not be thwarted because an officer of members have any points to raise on either of the superintendent rank is not available. instruments, they can ask the minister those The use of that power will, of course, be subject questions first. After that, we shall move into to review by the commissioners, and I would formal debate on the affirmative instrument, expect them to take a robust line. If they thought because the Parliament must agree that that the urgency requirement was being abused, I instrument. At that stage, I shall ask Iain to move expect that they would indeed take action. The the motion in the name of Angus MacKay. Are level of officers prescribed has arisen from wide members happy with that procedure? consultation with the public authorities concerned, Members indicated agreement. to ensure that it meets the requirement of balance between practicality in cases of urgency and The Convener: By way of introduction, I should proper authorisation. say that the Subordinate Legislation Committee considered the affirmative instrument on 24 The Convener: This question may reveal my October and had no comments to make on it. This ignorance, but is there still a rank of chief committee, as the lead committee, must report to inspector between inspector and superintendent? I the Parliament by 20 November on that think that there was a proposal at one stage to instrument. The position is that the instrument can abolish that rank. be made, and does not have to be approved by Phil Gallie (South of Scotland) (Con): The the Scottish Parliament before being made, but it Sheehy report suggested abolition. I do not think ceases to have effect if it is not approved within 40 that there is a rank of chief inspector now. days of being made. Iain Gray: I confess that I do not know the I shall start the ball rolling with a question for the answer to that. minister. The affirmative instrument covers various reasons that can be specified, under section 4 of The Convener: I was just a bit worried, because the Regulation of Investigatory Powers (Scotland) if the most senior officer available to authorise a Act 2000, for renewal of an authorisation. It seems renewal was an inspector, that would mean that to me that if somebody is providing a notice to a an inspector was the most senior officer available commissioner and giving a reason as to why it is full stop. People might have concerns about wider considered necessary to renew the authorisation, aspects of policing if nobody above the rank of such a reason could be fairly thin and vague. What inspector could be found. powers would the commissioner have to get those Iain Gray: That is a slightly different point about reasons expanded so that they made some kind of the way in which police are deployed sense? 1863 8 NOVEMBER 2000 1864 operationally. However, the fact that the order has laid because there was a deadline of 2 October been derived from wide consultation takes account when the European convention on human rights of the actual circumstances in which a decision came into effect. That is a short time scale. The might have to be taken. For example, an fact that the date of 2 October was known in authorisation might have to be taken in the middle advance leads us to ask why the legislation was of the night, at the weekend or during a holiday not ready soon enough to allow any orders to period, when an inspector would always be meet the 21-day deadline prior to 2 October. available. Iain Gray: Members of the committee will be Christine Grahame (South of Scotland) more familiar with the time scale of this piece of (SNP): I have a couple of questions about the legislation than I am. My understanding, however, affirmative instrument. Will all the documentation is that, in an attempt to maximise the time that is on notices of cancellation and renewals of available for parliamentary scrutiny, the bill was authorisation be available to a tribunal should a not passed by the Parliament until 7 September party proceed to a tribunal? and could not come into force until notifications were received from the Advocate General, the Iain Gray: It will be. Part of our reasoning was Lord Advocate and the Attorney General that they that the act and the order should be robust enough did not intend to refer the bill to the judicial to resist challenge under the European convention committee of the Privy Council, which took three on human rights. weeks. It was only at that point that the act could Christine Grahame: How long will that come into effect and secondary legislation made. documentation be retained? I do not recall The order was therefore laid on 29 September. whether there is a time limit for proceeding to a As you have explained, convener, the imperative tribunal, but I do not think that there is. was that the order was effective by 2 October and, Iain Gray: There is not a set time limit, but the given those dates, there was no time to observe commissioners would be required to recommend the 21-day rule. The Executive regrets that. In an how long the documentation should be retained. attempt to alleviate the problems that that might have caused, the public authorities that are Christine Grahame: Do you have any views on covered by the order have been kept abreast of that? Are we talking about 10 years, for example? developments and have seen the order in draft Iain Gray: The decision or recommendation that form. The draft was also available on the internet. would come from the commissioners is one of the The Convener: I think that the Advocate aspects of the Regulation of Investigatory Powers General and the other law officers have 28 days to (Scotland) Act 2000 that is being consulted on at refer the matter to the judicial committee. the moment. At present, I do not have a view on Obviously, they can indicate to the Presiding that, but consultation is under way. Officer almost immediately, if they choose, that Christine Grahame: Will you come back to us they do not intend to refer it. Is that the case? with that? Iain Gray: That is the case.
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