The
Committee consisted of the following
Members:
Benyon,
Mr. Richard
(Newbury)
(Con)
Cairns,
David
(Minister of State, Scotland
Office)
Chapman,
Ben
(Wirral, South)
(Lab)
Lazarowicz,
Mark
(Edinburgh, North and Leith)
(Lab/Co-op)
Liddell-Grainger,
Mr. Ian
(Bridgwater)
(Con)
Love,
Mr. Andrew
(Edmonton)
(Lab/Co-op)
Maclean,
David
(Penrith and The Border)
(Con)
Moran,
Margaret
(Luton, South)
(Lab)
Naysmith,
Dr. Doug
(Bristol, North-West)
(Lab/Co-op)
Neill,
Robert
(Bromley and Chislehurst)
(Con)
Reid,
Mr. Alan
(Argyll and Bute)
(LD)
Roy,
Mr. Frank
(Lord Commissioner of Her Majesty's
Treasury)
Ruane,
Chris
(Vale of Clwyd)
(Lab)
Wallace,
Mr. Ben
(Lancaster and Wyre)
(Con)
Wareing,
Mr. Robert N.
(Liverpool, West Derby)
(Lab)
Williams,
Mrs. Betty
(Conwy)
(Lab)
Wishart,
Pete
(Perth and North Perthshire)
(SNP)
Glenn
McKee, Committee
Clerk
attended the Committee
Seventh
Delegated Legislation
Committee
Wednesday 18
July
2007
[Mr.
Mike Weir
in the
Chair]
Draft Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2007
2.30
pm
The
Minister of State, Scotland Office (David Cairns):
I beg
to move,
That the
Committee has considered the draft Scotland Act 1998 (Transfer
of Functions to the Scottish Ministers etc.) Order
2007.
I begin by
welcoming you, Mr. Weir, to the Chair of the Committee. It
always gives me great pleasure to see you seated in a position of
authority in this great Parliament of
ours.
The
draft order is made under sections 30 and 63 of the Scotland Act 1998.
Section 63 allows for the transfer to Scottish Executive Ministers of
functions that are exercisable in or as regards Scotland, which is
commonly known as Executive devolution. Since 1999, 14 orders have been
made under that section. They demonstrate the Governments
pragmatic approach to devolution and the flexibility contained within
the Scotland Act. In certain circumstances, there will be a case for
functions to be exercised by Scottish Executive Ministers, even when
the subject matter remains the responsibility of this Parliament. Each
case will be examined on its merits to ensure that the functions are
best exercised at the appropriate
level.
The
Regulation of Investigatory Powers Act 2000 governs the use of
surveillance and information gathering to help prevent crime, access to
a series of safeguards and procedures for the use of covert
surveillance and the interception of communications. Although the
interception of communications remains a reserved matter, the issuing
of warrants in Scotland to authorise the interception of communications
under RIPA was devolved to Scottish Executive Ministers in 2000. Those
functions were transferred to the Scottish Executive by means of a
similar order to that before us
today.
In
2003, a further order was made. It executively devolved the power to
issue warrants in accordance with international mutual assistance
agreements under the 2000 Act. Under RIPA, warrants may be issued to
enable United Kingdom law enforcement agencies to seek assistance from
other agencies in Europe with the interception of telecommunications
outside the UK. Since 2003, two new agencies have become
operationalthe Scottish Crime and Drug Enforcement Agency and
the Serious Organised Crime Agency. The order will allow Scottish
Executive Ministers to issue warrants to those two new agencies in
accordance with the international mutual assistance agreements under
the 2000 Act. Its effect will be that the Scottish Crime and Drug
Enforcement Agency and the Serious Organised Crime Agency can apply
directly to Scottish Executive Ministers for interception warrants, as
other law enforcement agencies in Scotland can do already.
I come now to a technical note.
To facilitate the transfer of functions under section 63 of the
Scotland Act, it is necessary to specify which functions in RIPA are
exercisable in or as regards Scotland. Section 13(3) of the Scotland
Act provides that Her Majesty may by an Order in Council specify which
functions are to be treated as exercisable in or as regards Scotland.
The draft order specifies the aforementioned functions as being
exercisable in or as regards Scotland, so that they may then be
transferred to Scottish Executive
Ministers.
In
conclusion, the order is a sensible use of the Scotland Act and
demonstrates the Governments commitment to using the
Acts powers to transfer functions to the Scottish Executive
when it is clearly in the best interests of the people of Scotland to
do
so.
2.33
pm
Mr.
Ben Wallace (Lancaster and Wyre) (Con): I, too, welcome
you to the Committee, Mr.
Weir.
In welcoming the
order, which will hopefully allow a more efficient process for the
issuing of warrants to such agencies as SOCA and the Scottish Crime and
Drug Enforcement Agency, I have a number of questions. SOCA has been in
existence for nearly two years, so it prompts the question whether it
has already been getting its warrants or authority for warrants from
the Home Secretary, who is currently the Secretary of State responsible
to that agency. If that is so, why do we need to bring forward an order
two years down the line to move on to delegating the power to Scottish
Ministers?
SOCA
is a successful, powerful crime-fighting organisation. It is a United
Kingdom-wide organisation and, unlike any other crime-fighting agency,
it is overseen only by the Home Secretary directly. There is no
democratic oversight. Even our intelligence agencies activities
are overseen by the Intelligence and Security Committee, and our police
authorities do the same for police forces. SOCA is not subject to any
such oversight. In delegating the power to grant warrants to Scottish
Ministers, we should recognise that we are perhaps creating two masters
for SOCA, because what little oversight it has will remain with the
Home Secretary, while issuing warrants in Scotland passes to a Minister
who is accountable elsewhere. Will the Minister clarify how the
scrutiny of warrants will overlap with the scrutiny of the operations
for which they are
granted?
I understand
that Lord Evans of Temple Guiting mentioned yesterday in the other
place that under part 2 of RIPA, national agencies such as
SOCA can already operate throughout the United Kingdom. If that is the
case, do we need to modify the granting of warrants in this way? Can
SOCA just continue to perform directed surveillance, as it has clearly
been doing?
I am also
concerned to know how split masters will affect SOCAs
operational aspects. In starting an operation, SOCA is often involved
with international fraud and money laundering. Such an investigation
might be hosted from London, but it might extend throughout the length
and breadth of Wales, Scotland and maybe even Northern Ireland. For
successful crime fighting, it is important to ensure a clear line of
responsibility and reporting. Throughout operations
such as following people and surveillance, which can be fast-moving,
agencies should have one point of contact for getting permission, one
point of scrutiny and one point, effectively, for the judicial process
at the end. The last thing that we want is for criminals to exploit the
two jurisdictions to make it harder to
convict.
Paragraph 7
of schedule 5 to the Scotland Act 1998 contains a more general power to
allow Scottish Ministers to assist Ministers of the Crown. Why can we
not proceed by those means, without the need for an order? Could not
warrants be given on request as operations are approved? RIPA is all
about step-by-step approval for operations. Given that that is already
part of the process, could not the Home Secretary, under schedule 7,
simply contact his or her counterpart in the Scottish Executive and get
such assistance? Then passing the order would be
unnecessary.
Those are
my main points. The Conservatives will not divide on the order, but I
should be grateful for
clarification.
2.40
pm
Mr.
Alan Reid (Argyll and Bute) (LD): It is a pleasure to
serve under your chairmanship, Mr. Weir. I also support the
order. It makes sense that where warrants are granted for the purpose
of preventing or detecting serious crimes in Scotland, a Scottish
Minister should grant those warrants.
I should like to question the
Minister about schedule 2, which restricts the purposes for
which the First Minister can grant a warrant
to
(a) preventing or
detecting serious crime; or
(b)
in circumstances appearing to the Scottish Ministers to be equivalent
to those in which they would issue a warrant by virtue of section
5(3)(b) of the 2000 Act, of giving effect to the provisions of any
international mutual assistance
agreement.
Why is it
restricted to section
5(3)(b)
preventing or
detecting serious
crime?
Sub-paragraph (a)
is
the interests of
national security
and
(c) is
the economic
well-being of the United
Kingdom.
Will the
Minister explain why he believes that Scottish Ministers should not
grant warrants in the interests of national security or the economic
well-being of the United Kingdom? Does he not believe that the First
Minister can be trusted to act in those interests? I invite him to
speculate.
Pete
Wishart (Perth and North Perthshire) (SNP): It is a great
pleasure to serve under your chairmanship, Mr. Weir, and I
welcome you to this position of responsibilityit is something
that you and I are getting used to.
I welcome the
order, as I support, of course, the repatriation of all powers,
functions and orders to the Scottish Government, especially now that we
have a new Government running Scotland efficiently and effectively on
behalf of the Scottish people. It is good to see section 63 of the
Scotland Act 1998 being wheeled out once again to allow us to transfer
functions. It has been used efficiently and effectively over the past
few years. I suspect that in the not-so-distant future we will all be
sitting here once again discussing the further transfer of
functions and powers under good old section 63. I look forward to the
day when there will be no further powers, functions or anything else to
be transferred to the Scottish Parliament, because everything will have
already been
transferred.
As
the Minister has said, the transfer allows us to build on previous
transfers from 2000 and 2003. It allows Scottish Ministers to issue
warrants under section 5 of RIPA in the new agencies versus crime
provisions. The transfer of powers is welcomed by the Scottish
Government, who want to make good their commitment to engage and
harness all available expertise in tackling serious crime in Scotland.
Scottish Ministers want police investigations to be supported by an
increased range of resources and expertise, which means bringing
together dedicated prosecutors, forensic accountants, IT and corporate
law experts as part of a new serious crime taskforce. If it occurs, the
transfer will bring that ambition a little closer.
I have one question for the
Minister, which relates to the transfer and how SOCA will operate on
the ground in Scotland. Does he agree that it would be beneficial for
any officer operating in Scotland under the auspices of SOCA to have
some knowledge and appreciation of Scots law and procedure? As the
Minister knows, Scots law contains some substantial differences. Does
he believe that it would be worth exploring the idea of promoting more
understanding of the differences between the legal systems of the two
nations?
2.43
pm
David
Cairns:
May I say how grateful I am for the welcome that
has been given to the order by all parties? I shall try to answer some
of the questions that have been asked. Rather than try to answer points
individually, I shall do so collectively as the same issues were raised
by the hon. Members for Lancaster and Wyre and for Argyll and
Bute.
The
hon. Member for Lancaster and Wyre should bear in mind that criminal
justice matters are devolved. Therefore, we are talking about giving
those responsible for carrying out policing operations in Scotland and
any subsequent prosecutions the flexibility to go directly to the
Scottish Executive. They will be able to request a warrant from the
Ministers who are responsible for criminal justice, rather than having
to go to the Home Secretary or to a Scottish chief constable and ask
for sponsorship. In answer to his general question, that is what would
happen, rather than the matter being dealt with through SOCA.
The order is the completion of
a sequence that began with RIPA, in which the domestic intercept powers
had already been devolved to Scottish Executive Ministers and Scottish
law enforcement agencies. When Her Majestys Revenue and Customs
came into existence in 2005, it gained the powers as a new
organisation. SOCA and the Scottish Crime and Drug Enforcement Agency
are new organisations that receive the new powers under this order for
the purposes of mutual assistance throughout Europe.
I shall give
an example. If there is an investigation into drug trafficking in
Scotland, but there is a suspicion that some of the key players
involved are in Holland, the various law enforcement agencies in
Scotland could go to Scottish Executive Ministers, obtain the warrant
and apply to their counterparts in Holland. If they were to do it that
way, rather than going through the Home Office, the prosecutions and
operations would then take place in Scotland. The desire not to have
dual centres of power or too many cooks spoiling the broth is served by
doing it that wayby executively devolving it. So despite the
hon. Gentlemans legitimate fears, we are recognising the fact
that criminal justice is devolved. This is about crime, as opposed to
issues to do with national security, which is not
devolved.
Mr.
Wallace:
In my previous life, I discussed RIPA as it was
going through the Scottish Parliament, so I was aware of the scrutiny
process. The Minister has used the example of a criminal gang based and
operating in Scotland. However, where a criminal gang is moving
cross-border, national bodies, such as SOCA, can do surveillance
throughout the United Kingdom, when in need. Going the other way, from
England into Scotland, are they currently able, or will they still be
able after this order, to get authority from the Home Secretary for an
operation originating with a gang based in Birmingham, for example,
that will carry them through any surveillance that that operation leads
to, if the gang then goes to Scotland to deliver some drugs or
whatever? Will that still be possible or, as a result of the order,
when they get to the Scottish border, will they have to get in touch
with Scottish Ministers and say, We are coming across the
border, we should like another warrant? I seek clarity on
that.
David
Cairns:
The order has nothing to do with that; it is about
mutual assistance and about things that happen outside the UK. However,
the hon. Gentleman highlights a lacuna resulting from the arrangements,
post-RIPA, which is that Scottish law enforcement agencies have more
flexibility to operate in England than law enforcement agencies in
England and Wales have to operate in Scotland. That is a lacuna, not a
desired policy outcome. I am aware that discussions are ongoing between
Scottish Executive Ministers and the Home Office to rectify that matter
and ensure that that last piece of the circle is completed. The hon.
Gentleman is right to highlight that there is a discrepancy at the
moment that is not addressed in this order, which looks at European
mutual assistance and does not particularly address the issue about
which he is concerned. However, he is right to raise that lacuna in the
current arrangements, which will have to be
rectified.
Moving
on to what the hon. Member for Argyll and Bute said, as we saw with the
dreadful events at Glasgow airport a few weeks ago, the issues to do
with national security are still, quite properly, reserved. We have
seen a good degree of co-operation with the law enforcement
agenciesStrathclyde police and othersand with the
expertise in national security and counter-terrorism at the Met, which
has meant that that investigation has proceeded speedily and
satisfactorily, so
far.
Although
intercept in principle is not devolved, criminal justice is devolved,
and it makes sense to have Executive devolution for intercept or
criminal justice.
However, issues to do with national security are not devolved either in
practice or in policy, so we are not opening that one up for intercept.
Intercept to do with national security will still be governed on a UK
basis with the Home Secretary. I do not doubt for a second the First
Ministers desire to ensure that the UK, as a whole, is
protected adequately from any terrorist or national security
threats.
I
conclude with the hon. Member for Perth and North Perthshireit
is always a pleasure to conclude with himwho looks to the day
when these orders are no longer necessary. Of course, that would
require his party to overcome its dismal failure to convince anything
approximating a majority of Scots to support its desire to break up
Britainit has a fairly dismal record so far on convincing a
majority. Of course, should that ever happen, we will be in a different
situation.
I am
reassured, although I need not seek reassurance, that officers from
SOCA, about which the hon. Gentleman asked, must have a knowledge of
Scots law. It is incumbent on anybody who is operating in the criminal
justice field in Scotland to have a knowledge of Scots law, if only
because there would be no point in a person bringing a prosecution in
Scotland if they had simply blundered their way through elements of
Scots law. Those operating within Scotland need to be sensitive to the
differences in Scots
law.
David
Cairns:
My Whip will blame me for prolonging the
discussion for longer than
necessary.
Mr.
Wallace:
I will be brief. I simply wish to discuss the
question that I raised about paragraph 7 of schedule 5 to the 1998 Act
on Scottish Ministers assisting Ministers of the Crown. I wonder
whether that might be a more appropriate route to tackle the issue.
Instead of an order, could the Minister of the Crown, in this case the
Home Secretary, simply request assistance under paragraph 7, because
that deals with international relations and
requests?
David
Cairns:
There are essentially three ways in which the
matter could be addressed. One is to devolve it executively hook, line
and sinker, which is what we have done; another is to devolve it to the
Scottish Executive Ministers but require them to consult and inform the
Home Secretary; and the third is to keep the matter with the Home
Secretary but to require them to consult their counterpart in
Edinburgh.
After
taking all the various factors into consideration, in the 14 orders we
have tended to go for the maximalist approach, because sometimes such
investigations have to move quickly. Speed might be of the essence, if
intelligence indicates that an operation is being mounted abroad. It is
sensible that the agency can go straight to Scottish Executive
Ministers and get the warrant, get in touch with their counterparts in
a third-party country and get a move on. If there had to be a process
involving another stage of consultation at ministerial level, with the
best will in the world, it would add delay into the system. We are
attempting to track and arrest some very bad people who are up to very
bad things. Given that RIPA has all sorts of
safeguards before a warrant can be issued, to track and arrest people
while taking either of the two options that involve north-south
consultation would build in unnecessary delay. There are also
safeguards in place through the work of the commissioner, the tribunal
and all the rest of it. We are anxious that these things are done
smoothly and with the minimum of delay.
Question put and agreed
to.
Resolved,
That
the Committee has considered the draft Scotland Act 1998
(Transfer of Functions to the Scottish Ministers etc.) Order
2007.
Committee
rose at seven minutes to Three
oclock
.