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Public Bill Committee Debates

Draft Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2007

The Committee consisted of the following Members:

Chairman: Mr. Mike Weir
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 Government’s 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 operational—the 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 Government’s commitment to using the Act’s 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 SOCA’s 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 responsibility—it 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 Majesty’s 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.
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 agencies—Strathclyde police and others—and 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.
I conclude with the hon. Member for Perth and North Perthshire—it is always a pleasure to conclude with him—who 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 Britain—it 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.
Mr. Wallace: rose—
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.
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 o’clock .

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