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The Duke of Montrose: My Lords, I can see that one will have to read the Minister's speech with some care, given the technical detail involved. In the meantime, I wish to make a few comments about the statutory instrument as we see it at present. Perhaps the Minister will forgive me if some of my remarks come from a lack of understanding of all the detail that he gave. At the same time, I did my best to understand what he was talking about.
As a descendant of the President of the Privy Council of Scotland in 1706 who helped to negotiate the Act of Union so that it ensured the continuation of the Scottish legal system, it gives me considerable pleasure to see Scottish Ministers given power to work through the courts on matters such as the regulation of investigatory powers. However, we are in a rather grey area. Much of the electronic communication that will be investigated is a UK-wide network.
One of the aspects that interests me is that, if an authority in Europe wishes to pursue an investigation, it may not be able to identify the part of the United Kingdom in which it needs to track down the information that it seeks. If the first request comes to the
UK Government, will the authority then be asked to make a separate request to the Scottish Government if it turns out that the information that it wants is located in Scotland? Alternatively, will the permission given by the UK Minister suffice in that inquiry? The other interesting thing might be that, if that European government was turned down by the UK Government, what would happen if they then went to the Scottish Government who approved the investigation that they wished to have carried out? Presumably, electronically, the Scottish Government could inquire into a UK electronic network as easily under a Scottish warrant as under an English one.I would like to ask the Minister about something that I could not find easily. How do the Government propose to regulate that the power to grant these warrants is not left open to people acting from too wide a spectrum of authorities, some of which might trigger an appeal under the EU declaration of human rights? At the moment, we are only allocating this power to Scottish Ministers. Do we have any idea how many Scottish Ministers are likely to act in this regard?
I have a series of questions to put to the Minister to see whether they trigger some kind of answer. Will Scottish Ministers be able to have a direct personal input into how the provisions in the EU legal assistance convention are implemented in Scotland?
Which law enforcement agencies in other EU member states have been designated, under the legal assistance convention, as competent to issue requests for interception? For example, will Europol or any other EU-level institution be empowered to make requests to Scottish Ministers for interception requests under this order?
The Minister mentioned that Scottish police would be able to make requests for interception in other EU member states. Would that require approval from the relevant Scottish Minister or would it be done through the UK Minister?
What assessment has the Minister made of the benefits of enabling Scottish Ministers to participate in requests for interception in other states under this mutual assistance convention?
I listened to some of the debate in another place and an interesting question arose relating to whether Members of the other place, who are continually being told that they may not deal with devolved matters—and so with Scottish Ministers—would be able to question Scottish Ministers who sign such a warrant if it affects one of their constituents. Perhaps the matter would be taken up with a Member of the other place and the constituent would be looking for some investigation to be made.
To cast the net a little wider as we tease out the workings of the devolution settlement, considering that the fundamental requirement that has triggered this legislation is the European mutual assistance convention, if a similar EU requirement arose and the Government at Westminster proposed a transfer of
functions order which the Scottish Minister refused to accept—perhaps on the grounds of cost or principle—what would be the correct procedure to be followed?
The Earl of Mar and Kellie: My Lords, like the noble Duke, the Duke of Montrose, many of whose remarks I agree with, I also pray in aid a predecessor who signed the Union and secured the continuation of the Scottish legal system. That same ancestor then spent the winter of 1706 and the spring of 1707 persuading the Scottish Parliament to go along with his idea.
I thank the Minister for his explanation of the order. The Explanatory Memorandum is helpful, his description even better and the explanatory notes wonderful, although I do not know what they are about. We have certainly progressed further tonight than we would have done had we been confined to the explanatory notes.
We can support the order, first, because it is devolutionary in trend, even though it is only executive devolution. Pre-devolution, such functions would naturally have gone to the Secretary of State for Scotland, so there is nothing revolutionary about that part of the devolution procedure. We like the order because it tends towards international co-operation. It removes some overseas hiding places for Scottish criminals and prevents Scotland from becoming a hiding place for other people's criminals. The order seems to extend what is already happening and would have happened anyway pre-devolution. I consider it to be, as much as anything, a legislative tidying-up exercise, but I see from the noble Lord's explanation that it is a slight expansion of the Regulation of Investigatory Powers Act 2000.
The noble Duke raised an interesting question about such a type A procedure order. I would like to believe that the order has three-way scrutiny—in both Houses of this Parliament and in the Scottish Parliament. I suppose that any of those Houses could strike it down, if it wished. I shall be interested to hear whether the Minister can say anything further about that.
Finally, as we are dealing with the Scotland Act 1998, I have seen much comment about another aspect of the Act—what we know as the West Lothian question—and the fact that last night's majority of 35 was made up with 40 Scottish MPs. In some ways, I understand why people would complain about that, but I also remind myself of the previous 292 years.
8.45 p.m.
Lord Evans of Temple Guiting: My Lords, the noble Duke, the Duke of Montrose, started his interesting speech by saying that he did not understand the order and wished to read it again. He then asked a series of questions that suggested that he understood the order only too well. On several of the technical questions that the noble Duke asked, I shall have to write to him.
We must consider the order in context, and the context is that the Convention on Mutual Assistance in Criminal Matters between the member states was signed by EU Ministers on 29th May, 2000. The convention is intended to improve co-operation
against serious and organised crime by improving procedures for mutual legal assistance. The convention will enter into force in countries that have ratified it 90 days after the eighth member state has done so. The UK hopes to ratify the convention by the end of the year. That is why we are here, and it is in that context that we introduce the order.The noble Duke, the Duke of Montrose, asked what would happen if Ministers disagreed with future proposals for transferring functions. A further transfer of functions would not take place if Scottish Ministers disagreed. Agreement is needed by the Government and Scottish Ministers before a Section 63 order can be laid.
The noble Duke asked about difficulties with tracking targets. If the target is initially located in Scotland and then moves to another part of the UK, the warrant and, thus, the process of interception would continue. There would not be a boundary problem. Which Scottish Ministers will issue warrants? The term "Scottish Ministers" is generic. It could be any Scottish Minister.
The Duke of Montrose: My Lords, I understand that the warrant will be processed, perhaps, through a Scottish court. The powers of a Scottish court do not extend to England. It is a slight puzzle. If the target moved, what would happen? If the warrant depended on the powers of the Scottish court, it would expire at the Border.
Lord Evans of Temple Guiting: My Lords, I can speculate that the answer is that the United Kingdom is joining the European Convention on Mutual Assistance in Criminal Matters. It is a UK matter. If, for example, a criminal from France were to come to Scotland, it would be inconceivable, under a convention such as this, that if he moved over the Border to England he could not be pursued with the same warrant, because we, the UK, have acceded to the EU convention?
As I said, there are a number of questions posed by the noble Lord on which I shall have to write to him. I have just heard that the warrants are not issued by courts but by the administrative regime set out in RIPA. The noble Duke asked about the functions conferred and the benefits of doing that. The Scottish Executive already deals with other requests of mutual assistance in criminal matters as they relate to Scotland. In addition, as a result of a previous order—the Scotland Act 1998—the Scottish Ministers already have the power to authorise domestic interception warrants relating to serious crime in Scotland. Enabling the Scottish Ministers to deal with requests for mutual assistance in interception matters as they relate to Scotland would be entirely consistent with both existing practice and the spirit of the European Convention on Mutual Assistance in Criminal Matters, which is likely to be the first international agreement relating to the provision of assistance in interception matters to be designated.
To return to the order, the noble Duke asked about restrictions and safeguards. Although I do not have the details, under Section 5 of RIPA there will be general safeguards on restrictions on use of intercepted material. I am grateful to the—
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