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Delegated Legislation Committee Debates

Draft Scotland Act 1998 (Transfer of Functions to the Scottish Ministers Etc.) (No. 2) Order 2003

Twelfth Standing Committee on Delegated Legislation

Wednesday 9 July 2003

[Mr. John Cummings in the Chair]

Draft Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) (No. 2) Order 2003

2.30 pm

The Parliamentary Under-Secretary of State for Scotland (Mrs. Anne McGuire): I beg to move,

    That the Committee has considered the draft Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) (No. 2) Order 2003.

It is a pleasure to be in Committee on such a lovely afternoon to talk about such a fascinating transfer of functions order. I welcome all colleagues here this afternoon, especially those furth of Hadrian's wall.

As is usual with such orders, copies of the explanatory memorandum have been made available to hon. Members. I bring hon. Members' attention to paragraph 9, which notes that the Crime (International Co-operation) Bill is not expected to achieve Royal Assent before July 2003. Since the memorandum was published, that date has changed and the Bill is expected to achieve Royal Assent before the end of this Session.

The order is constitutional in nature. Pursuant to section 63 of the Scotland Act, it transfers to the Scottish Ministers functions that are exercisable in, or in relation to, Scotland. This is commonly known as executive devolution. The Scotland Office has worked with the Home Office and the Scottish Executive to pull the order together. Executive devolution orders are considered by both Houses of Parliament using the affirmative procedure, and are also scrutinised by the Scottish Parliament. All parties have agreed the text and policy effects of the order. Hon. Members who have served on previous Committees that have considered these orders will recall our discussion on some points of principle on the use of section 63 of the Scotland Act. I reaffirm the Government's position on the use of the power and how that sits with our wider management of Scotland's devolution settlement.

All proposals for orders under section 63 are carefully considered. The Scotland Office manages the passage of these orders to ensure that their implementation of Scotland's settlement is in line with the Government's wider devolution policy. Agreement to proposed orders is not part of an ineluctable shifting of the boundaries of the devolution settlement to the Scottish Executive, but is part of its sensible management. The key criterion is whether better government will result from an order and, in the case of section 63 orders, the transfer of functions.

Orders were always anticipated as part of the devolution settlement. The Scotland Act recognises that it would be appropriate in some cases for Scottish Ministers to be able to exercise executive powers in

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areas in which primary legislation continues to be a matter for this Parliament. This order is about the sensible use of the Act's provisions, and is an example of the Government and the Scottish Executive continuing to make devolution work.

In the past, hon. Members have found it useful for me briefly to describe the particular sections of the Scotland Act that are being used to make subordinate legislation, and I will do so again. Section 63 confers a power on Her Majesty to provide by Order in Council for the Scottish Ministers to be able to exercise any statutory or non-statutory function of a United Kingdom Minister of the Crown—insofar as they can be exercised in, or in relation to, Scotland—instead of, or concurrently with, the UK Minister of the Crown. It also allows for functions to be carried out by a Minister of the Crown with the agreement of, or after consultation with, the Scottish Ministers. In this instance, the Scottish Ministers will exercise the functions instead of the Minister of the Crown.

Article 2 of the order, together with schedule 1, sets out the extent to which the functions concerned are to be regarded as affecting Scotland for the purposes of the order. That procedure is provided for in section 30(3) of the Scotland Act 1998, and is commonly known as a paving provision.

The order executively devolves to Scottish Ministers certain functions relating to international mutual assistance under section 5 of the Regulation of Investigatory Powers Act 2000. The provisions will enable Scottish Ministers to authorise interception warrants in response to requests for mutual assistance in interception matters relating to serious crime in Scotland—or rather, serious crime related to Scotland. I realise that putting the matter in such a way may make it appear that we are talking about masses of serious crime in Scotland, although perhaps we could clarify that later. The warrants would result from requests from abroad for interception of targets located in Scotland, or requests from the Scottish police or Her Majesty's Customs and Excise for interception to be conducted abroad in furtherance of an investigation being conducted in Scotland. Therefore, there are two elements to the process.

For example, the French police in Calais may be investigating the activities of a group of drug traffickers. During their investigation, they may become aware that their targets are contacting a person based in Scotland to discuss details of the drug business. To further their investigation, they may decide to request that the communications of the person in Scotland be intercepted. The French police would obtain an appropriate judicial warrant and make a formal request for mutual assistance in interception matters to the competent authority in the UK—in this case, to the Crown Office in Scotland. Based on the information provided and the criteria set out in chapter I of part I of the RIPA, Scottish Ministers would then make a decision either to grant or to refuse the request for a warrant. If the warrant were issued, arrangements would be made for the contents of the communications to be passed to the French law enforcement agencies in Calais. The reverse could also be true. As a result of co-

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operation and/or liaison on the case between the French and Scottish police, a request from Scotland to the competent authorities in France might also be made for interception to take place there to support a Scottish investigation of the case.

The proposed transfer of functions is in line with current practice in two ways. First, as a result of the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) (No. 2) Order 2000, No. 3253, Scottish Ministers already sign interception warrants relating to serious crime in Scotland. Secondly, the Scottish Executive already deal with all other requests for mutual assistance in criminal matters as they relate to Scotland. In practical terms, article 3 of, and schedule 2 to, the draft order transfer functions in relation to the issue of interception warrants pursuant to sections 5(l)(b) and (c) of the RIPA. Those functions will be exercisable in or as regards Scotland for the purpose of preventing or detecting serious crime or, in circumstances equivalent to that, for the purpose of giving effect to the provisions of any international mutual assistance agreement.

Under section 5(l)(b), Scottish Ministers will be able to issue a warrant authorising the Scottish police or Her Majesty's Customs and Excise to request interception to be conducted abroad in furtherance of an investigation being conducted in Scotland. Under section 5(l)(c), Scottish Ministers will be able to issue warrants authorising interception of targets located in Scotland in response to requests from abroad. Warrants under each of sections 5(l)(b) and (c) can be issued only in accordance with an international mutual assistance agreement designated under the RIPA.

In the first instance, that will be the EU mutual legal assistance convention, so requests under section 5(l)(b) will be requests for interception in other EU member states, whereas requests under section 5(l)(c) will be requests for interception in Scotland by EU law enforcement agencies.

The explanatory memorandum available to hon. Members clearly explains the convention, which concerns the improvement of judicial co-operation by updating the existing provisions governing mutual assistance—for example, the provisions in the 1959 Council of Europe convention on mutual assistance in criminal matters. The purpose of the draft order is to assist with that improvement.

Hon. Members will also have noted in the explanatory memorandum that the Crime (International Co-operation) Bill now going through Parliament will implement those provisions of the convention not currently in legislation.

The draft order also transfers supplementary functions under sections 9, 10 and 15 of the RIPA to Scottish Ministers. They concern the continuing administration of the functions being transferred under section 5 of the RIPA, including the duration, cancellation and renewal of warrants, the modification of warrants, and general safeguards on restrictions on the use of intercepted material. Enabling Scottish Ministers to deal with requests for mutual assistance in interception matters as they relate to Scotland is

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entirely consistent with both existing practice and the spirit of the EU mutual legal assistance convention.

It is worth noting also that no regulatory impact assessment has been prepared in relation to this instrument, as it will have no significant regulatory impact on society, industry or local government.

2.41 pm

Mr. Peter Duncan (Galloway and Upper Nithsdale): It is a pleasure again to serve on the Committee under your chairmanship, Mr. Cummings. You seem to draw the short straw on orders under the Scotland Act 1998, but you get the most interesting ones. The draft order before us is, as the hon. Member for Linlithgow (Mr. Dalyell) said before we started, one of the most interesting, and it required considerable thought over the weekend. I thank the Minister for her introductory comments.

Since we last met to discuss a similar order, interception of communication between the devolved Parliament and this Parliament has been somewhat lacking of late, but I leave that for the Minister to consider elsewhere.

I want to raise two or three matters on which we require further clarification. The issues raised in the draft order are complex and serious. The amount of debate on the 2000 Act was a reflection of the serious issues raised when implementing its provisions, and it is only reasonable that some of those issues be scrutinised.

In what specific ways are the existing powers considered to be inadequate? The Minister said that the ambition in the draft order is to refine and accelerate the way in which warrants can be issued and communications can be intercepted. I should be interested to hear what evidence exists to suggest that the way in which the system has worked to date has been shown to be inadequate. Will she also comment on the definition of serious crime? She referred to confusion between crime in Scotland and orders concerning international crime that need to be implemented for Scotland. There is confusion about that, but there may also be confusion about what constitutes serious crime. Scottish Ministers may have a different view from that of Home Office Ministers on what is serious crime.

The Minister also said that the warrants can be applied for by two routes: by applying either to chief constables or to Customs and Excise commissioners. The devolved Administration has very few channels of communication with Customs and Excise. What investigation has gone into how that would work in practice? What thought has been given to developing channels of communication that would allow requests to be dealt with in a structured way that did not cause further confusion? It is easy to demonstrate that there could be a locus problem. Her Majesty's Customs and Excise deals with UK-level crime, and duty evasion, for example, could be regarded as UK-level crime. How will Scottish Ministers be able to interpret such matters given that they have not been asked to do so to date?

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The Minister mentioned a helpful example from France. Arguably, it was even more helpful than the explanatory memorandum, although that is no criticism of the person who prepared it. It is perfectly possible that the intelligence services will be involved in such cases, but they have no direct communication with Scottish Ministers, as far as I know. How would such communication be facilitated? How would the issues that are raised be resolved?

The Minister alluded to the fact that activity around many of the issues raised in the order has been accelerated by the EU mutual legal assistance convention, which the Home Secretary signed on 29 May 2000. It aims to enhance arrangements for co-operation between member states and judicial and prosecuting authorities in the gathering of evidence for criminal investigations and prosecutions. Will those measures accord with the principle of co-operation between EU states on criminal matters or—this difference is important—with that of greater harmonisation in such matters? I would not like matters in Scotland to move on further than matters at UK level. What assessment has the Minister made of the cost and technical implications of enabling Scottish Ministers to authorise incoming and outgoing requests for mutual legal assistance in interception matters? When does she expect the EU mutual legal assistance convention to come into force? I understand that there is some doubt about the date towards which we are working.

The Minister rightly said that, in accepting such orders, we are working towards better government and the better implementation of the devolution settlement. As we have found out over the past 24 hours, further work is required in some respects. For example, we must work towards better government in the implementation of Home Office codes of practice. The Minister will recall the detailed debates that took place in the House before the 2000 Act was passed. There was great concern about whether snooping orders, to borrow a phrase used on the streets, could be implemented without compromising human rights. Will Scottish Ministers be automatically bound by Home Office codes of practice on the implementation of interception of communications orders? Will they be involved in any future redrafting and development of codes of practice? Obviously, many concerns were allayed during the passage of the Act on the basis that there would be strong and strict codes of practice for the police, Customs and the security services. If Scottish Ministers are to be asked to implement codes of practice, will they have an input into any future redrafting and development? More importantly, will they be implementing the same codes of practice as their colleagues in the Home Office? More generally, will codes of practice need to be formally redrafted as a result of the input of Scottish Ministers?

There will often be doubts about the target of incoming requests from elsewhere in the EU—the Minister gave an example from France. What process will be put in place to ensure that the responses given

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by Scottish Ministers and the Home Office do not conflict? The French authorities that the Minister mentioned might be unsure about the location of their target, but that target might be in the UK. Who will they approach about that—a Scottish Minister or the Home Office? If the Home Office gives approval, will that supersede the approval of the Scottish Minister? If a Scottish Minister gives approval, will that provide de facto approval for the interception of communications elsewhere in the UK? There is potential for conflict, so the Minister needs to give the issue some attention in her response to our short—I emphasise short—debate. As the Minister said, the transfer is in line with current practice, so it is reasonable to ask why it was necessary to introduce the order. Was current practice going beyond the powers that were already in place, or was it stretching the boundaries of the current powers, so the order is needed to extend them?

Finally, the draft order makes it clear that there will be no financial effects if it is passed. I suggest to the Minister that that is an ambitious assessment, given the interaction that will be required between different Departments, Ministers and Scottish Ministers, between Scottish Ministers and Her Majesty's Customs and Excise, and between Scottish Ministers and other departments. I suspect that a new channel of communication will be required between Ministers and Scottish Ministers on codes of practice needed to implement the 2000 Act, and also that a new channel of communication will be required between Scottish Ministers and Customs and Excise. Any such channel will require financial assistance, so I urge the Minister to re-examine the assessment that the order will have no financial effect.

2.51 pm

 
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