§ 8.30 p.m.
§ Lord Evans of Temple Guiting rose to move, That the draft order laid before the House on 24th June be approved [24th Report from the Joint Committee].
§ The noble Lord said: My Lords, as is usual with orders of this kind, copies of the Explanatory Memorandum on it are available in the Printed Paper Office.
§ I draw noble Lords' attention to paragraph 9 of the Explanatory Memorandum, which notes that the Crime (International Co-operation) Bill is not expected to receive Royal Assent before July 2003. That has changed since the laying of the memorandum. The Bill is expected to receive Royal Assent before the end of this parliamentary Session, probably in November 2003.
§ The instrument we are considering today is constitutional in nature. Pursuant to Section 63 of the Scotland Act, it transfers to Scottish Ministers functions that are exercisable "in or as regards Scotland", which is commonly known as executive devolution. It does not alter the legislative competence of either the UK or Scottish parliaments.
§ The order will enable Scottish Ministers to authorise interception warrants in response to requests for mutual assistance on interception matters relating to serious crime in Scotland. Those authorisations would be made as a result of requests from abroad for interception on targets located in Scotland or requests from the Scottish police or Her Majesty's Customs and 363 Excise who want to apply for interception to be conducted abroad in furtherance of an investigation being conducted In Scotland.
§ The proposed transfer of functions is in line with current practice in two ways. First, as a result of a previous Section 63 order (SI2000/3253), the Scottish Ministers already sign interception warrants relating to serious crime in Scotland. Secondly, the Scottish Executive already deals with all other requests for mutual assistance in criminal matters as they relate to Scotland. 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.
§ Noble Lords have in the past found it useful to be told the particular sections of the Scotland Act being used to make subordinate legislation. Section 63 confers a power on Her Majesty to provide by Order in Council for any statutory or non-statutory function of a UK Minister of the Crown, so far as they are exercisable in or as regards Scotland, to be exercisable by the Scottish Ministers, either instead of, or concurrently with, the UK Minister of the Crown. It also allows functions to be carried out by a Minister of the Crown with the agreement of or after consultation with the Scottish Ministers. In that instance, the Scottish Ministers will exercise the functions instead of the Minister of the Crown.
§ Article 2 of, and Schedule I to, the order set 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.
§ Under Section 5 of the Regulation of Investigatory Powers Act 2000 (RIPA), the order then transfers certain functions relating to international mutual assistance. 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 Section 5(1)(b) and (c) of RIPA. Those functions will be exercisable in or as regards Scotland for the purposes of preventing or detecting serious crime or, in equivalent circumstances, for the purpose of giving effect to the provisions of any international mutual assistance agreement.
§ Under Section 5(1)(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(1)(c), Scottish Ministers will be able to issue warrants authorising interception on targets located in Scotland in response to requests from abroad. Warrants under either Section 5(1)(b) or Section 5(1)(c) can be issued only in accordance with an international mutual assistance agreement designated under RIPA.364
§ In the first instance, that will be the EU Mutual Legal Assistance Convention, so requests under Section 5(1)(b) will be for interception in other EU member states and requests under Section 5(1)(c) will be requests for interception in Scotland by EU law enforcement agencies.
§ The Explanatory Memorandum clearly explains the convention, which, in short, concerns the improvement of judicial co-operation by updating the existing provisions governing mutual assistance—for example, those included in the Council of Europe Convention on Mutual Assistance in Criminal Matters of 1959. The purpose of today's order is to assist in that improvement.
§ Noble Lords will also have noted in the Explanatory Memorandum that the Crime (International Co-operation) Bill, currently going through Parliament, will implement those provisions of the convention not already in legislation.
§ Supplementary functions under Sections 9, 10 and 15 of RIPA are also being transferred to Scottish Ministers by this order. They concern the ongoing administration of the functions being transferred under Section 5 of RIPA; for example, 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 would, therefore, be entirely consistent with 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. I commend the order to the House.
§ Moved, That the draft order laid before the House on 24th June be approved [24th Report from the Joint Committee].—(Lord Evans of Temple Guiting.)
§ 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 365 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 366 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 367 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.
368 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—
§ The Earl of Northesk
My Lords, I apologise for intervening. The noble Lord was talking about safeguards. One can accept that the transfer of functions of RIPA to Scotland—so that goes ahead. But oversight and scrutiny of the regime, particularly where there is no judicial process involved, belongs, I understand, to the Information Commissioner. Therefore, how on earth is the Information Commissioner to have jurisdiction over a devolved matter?
§ Lord Evans of Temple Guiting
My Lords. that is a question on which I shall have to write to the noble Earl. Every time the noble Earl, Lord Northesk, asks me a question, whatever the context, I regret that I always have to say that I shall write to him. I apologise for that. One day I might be able to give the noble Earl a direct answer.
I am grateful to the noble Earl, Lord Mar and Kellie for his supportive statements on the order. He asked what would happen if one House were to strike down the instrument. The order would not go to the Privy Council and would fall. I commend the order again to the House.
§ On Question, Motion agreed to.