 Good morning, and I welcome everyone to the Justice Goodies First meeting in 2015. I ask everyone to switch of mobile phones and other electronic devices, as they interfere with broadcasting, even when they switch to silent. No apologies have been received. Item 1—the committee has invited to agree to consider item 7, 8 and 9, which are draft reports on the modern slavery court and the prison monitoring order, and the city's suite I built in private. Are you agreed? bundle 2, 1. I have a one affirmative instrument for amendment and draft advice for assistance by the way of representation Scotland amendment regulations 2015. I welcome you to the meeting. I wish a happy new year to Paul Wheelhouse, Minister for Community Safety and Legal Affairs and Denise Swanson, Head of Access to Justice Union and Aleister Smith, directorate for legal services to the Scottish Government. I believe that you want to make a brief opening statement such as this is a pretty self-explanatory Studiiddion Llegerslacesgwyr, a nawr mae'n gondol i ddim. Felly ymlaes o'i wathriaeth yma wrth gwrs am gyffredinol felly mae'n fawr i gennym. Ymlaes i'r cyfrifisedig yn sut yn ymlaes i gael i ddim. Felly ymlaes i'r cyfrifisedig yn ei ddatblygu o'r ymlaes i ymlaes i ddim, rhai. Felly ymlaes i'r cyfrifisedig yn ymlaes i'r gyfrifisedig yn eu ddim. Llan mwy fï tracesd, yn wych, yn ei ddim yn y ddim i ddim, yn ei ddim, yn yw iawn i ddim. I guess the obvious, but that's the first advice. My fold Cook says, my fold is in the wrong order. That is very brief. The Children and Young People's Scotland Act 2014 makes amendments to the children's hearing's Scotland Act 2011. The amendments make provision for a prehearing panel to determine whether an individual who had previously deemed to be a relevant person should continue in that role. Those regulations make consequential amendments to the advice and assistance system by way of representation Scotland regulations 2003. The amendments ensure that children and relevant persons will have access to a war where a pre-hearing panel is considering whether an individual should continue to be a relevant person. The Justice Committee will wish to note that stakeholders are supportive of those changes. I understand that Law Society of Scotland has written directly to the committee to confirm its support. Those amendments also ensure that access to justice is maintained at the right time and for those who need it most. I have any questions on that, because it is pretty self-expanding. It seems an absolutely sensible thing to do to give people the right to representation in these very important circumstances. I am now moving on to item 3, subordinate legislation. The formal debate on the motion to approve the instrument, considered under that previous act. I invite you minister to move S4M 11913, the Justice Committee recommends that the draft advice assistance by the way of representation of Scotland regulations 2015 be approved. Do any members wish to speak in the debate? No. The question is that S4M 11913 be agreed to. Are we all agreed? Thank you very much. As members are aware, we are required to report on all affirmative instruments so that you can tent to delegate authority me to sign off this report. Item 4. There are three further affirmative instruments. There are different kettle of fish here. The draft regulation of investigative powers covert surveillance and property interference code of practice Scotland order 2015. The draft regulatory of investigatory powers modification of authorisation provisions legal consultation Scotland order 2015. The draft regulation of investigative powers covert human intelligence sources code of practice Scotland order 2015. Minister, you are still here and I will let the seamless transition and change over of officials. I welcome Graham Wann, investigative powers team police division and Kevin Gibson, director for legal services. Minister, do you want to make a statement? If we will get it right this time. Thank you very much. Thank you, convener. There are three affirmative orders being made under the regulation of investigative powers Scotland Act before the committee today. It is worth pointing out at the outset that there is nothing in the orders that provides any public authority with additional powers. I will begin, if I may, with the regulation of investigative powers modification of authorisation provisions legal consultation Scotland order 2015. In 2010, the House of Lords, in considering an appeal from the division of court in Northern Ireland, agreed with the court's decision that directed surveillance under the regulation of investigative powers act 2000 of communications between lawyers and their clients, breached article 8, the right to respect for private and family life of the European Convention of Human Rights. The Secretary of State did not challenge the decision of the divisional court that the procedures used to authorise directed surveillance were disproportionate to the infringement of an individual's right to private consultation with a lawyer, particularly given the lack of a requirement for independent and high-level scrutiny of such authorisations. In Scotland, the authorisation of directed surveillance is mostly regulated by the regulation of investigative powers Scotland act 2000, or RIPSA, and the relevant provisions of that legislation are, for relevant purposes, the same as those successfully challenged in the House of Lords. It is therefore necessary to adjust the authorising regime for directed surveillance of legal consultations under RIPSA. RIPSA contains provisions that allow Scottish ministers to reclassify particular types of directed surveillance as if they were intrusive surveillance. That reclassification has three main effects that operate to restrict the use of directed surveillance in defined cases, as well as enhancing independent oversight of the process. Firstly, it narrows the circumstances in which directed surveillance can be used to those where it is necessary to prevent or detect serious crime. Secondly, it restricts the office holders who can authorise such surveillance to the chief constable of the police service of Scotland or any other senior officer designated by him and to the police investigations and review commissioner. Thirdly, it requires notification of authorisation to be given to an ordinary surveillance commissioner and prevents that authorisation taking effect unless the commissioner approves it. A commissioner will only provide that approval if he or she feels that the authorised surveillance activity is both necessary and proportionate. The committee is today also considering a fourth negative order being made under RIPSA. I would like to briefly say that one of the things that the negative order seeks to do is to put in place a similar framework to the one that I have just described with regard to the authorisation of covert human intelligence sources whose activity may involve matters subject to legal confidentiality. Again, that represents a significant tightening up on existing arrangements. The two remaining affirmative orders—the regulation of investigatory powers, covert surveillance and property interference code of practice Scotland order 2015 and the regulation of investigatory powers, covert human intelligence sources code of practice Scotland order 2015—are technical in nature. Their purpose is to put in place the revised codes for covert surveillance and property interference and covert human intelligence sources and to revoke the existing codes that were published in 2002. A number of changes have taken place since the codes were last published in 2002, as well as reflecting the issues around legal confidentiality and undercover operatives that the committee is considering today. The codes reflect a number of organisational changes that have taken place in the last 12 years. Not least of those, of course, is the amalgamation of Scotland's police forces into the single police service of Scotland. Thank you, convener, for your opportunity. Thank you very much. I know that you have made reference to item 6, which is fine, which is the negative instrument. I have got John Finnie and then I have got Alison McInnes. Morning, minister. I know that you say that there are no additional powers, but you will be aware, minister, of the significant public concern that is about the level of surveillance that exists in Scotland. What reassurance of any can you give that those changes will be adhered to by UK bodies, the UK security services and any UK police services that are distinct from Scottish? What we have is a regime in place that would ensure that the opportunities to use the surveillance is only when it is proportionate and necessary, and in relation to serious crime in some cases. We have clearly established procedures that are already working elsewhere in the islands, in terms of other jurisdictions, which have had time to bed in, in some respects. We believe that they are working effectively. There are no concerns being raised so far, at least in relation to our own knowledge, that those have been abused by other bodies outside of Scotland. I very much note the point that the member has made and identified with the concerns that we need to be seen to be acting proportionately, and that it is necessary and not to use them in situations outwith that definition. I would be happy to keep a close eye on how that operates in practice and to see whether there are any concerns that arise in due course. Can I raise a number of issues regarding the letter from the faculty of advocates that you will be aware of, minister? I quote from the second page, that the grounds upon which the powers may be exercised are more limited than the powers under the equivalent UK orders, and that, too, is welcome. Again, it is against that background that it is a tighter regime in Scotland that you would acknowledge. It is very much the point that I emphasised that, out of my remarks, we are certainly not giving any additional powers to investigatory authorities. What we are doing is tightening up the delivery of that in practice and making sure that it is compliant with the decision that was taken in relation to what happened in Northern Ireland. It is our own approach to this particular issue, but we are satisfied that we are taking a robust approach to ensuring that it is properly overseen by the commissioner and the police themselves. I imagine that it would be argued that any prosecution that relied on the level of surveillance that did not comply fully with the procedures in Scotland would be flawed. How would the Scottish Government respond if it transpired that there was any activity at UK level where this procedure had not been followed, where, for instance, there was a prosecution out with Scotland's jurisdiction? Clearly, we have on-going dialogue with colleagues across the UK in relation to the operation of such matters and to learn from experience elsewhere. Similarly, they will be learning from ourselves in terms of how we deliver this, I am sure. If matters come to light that there are concerns about the implementation of this elsewhere in the UK that might have implications for our own approach and framework that we have in Scotland, then clearly we would need to take that on board. I would certainly give my own undertaking that if issues did come to light, I would look again at the procedures. However, we are confident that what we have in front of the committee today is an appropriate approach to tackling the issue that was brought forward in relation to the court case in relation to Northern Ireland. That will make sure that the legislation in Scotland is compliant with the CHR in respect of those matters. On that particular court case, which hints on the legal professional privilege and accepting the issue of inequity—the exception there. The faculty of advocate said, again, that the issue is not only of interest to lawyers and to those who seek the advice of lawyers, whether in the context of civil or criminal matters, but is of structural importance in a constitutional democracy governed by the rule of law. They then go on to say that it is evidently intended that surveillance under SSIs may be authorised even in circumstances that would not engage the inequity exception. Is it not a matter of grave concern when a body of lawyers speaks as strongly about the issue as that? I certainly respect the views that have been expressed by Mr Wolff on behalf of the faculty of advocates. What we have done is we believe that we had a choice as to how we take that issue forward. Do we give clarity to legal professionals and those using legal services as to the circumstances in terms of the premises or location in which they can be clear that they will have a higher test being applied to the use of surveillance in relation to their privacy? We believe that the approach that we have taken will give that clarity so that a legal advisor will be able to tell their client that, if they are conducting their discussions in their legal premises, they will have additional degree of scrutiny applied to any application that we have made to undertake surveillance in relation to that conversation. Whereas, if we would face a difficult, very practical difficulty, if we did not define it in relation to the location of where that advice has been given about how we would know in advance of a conversation taking place that it was of a legal nature and therefore subject to that test, we are having to wrestle with an issue about the practicality of delivery of this important principle. I very much recognise in Mr Wolff's comments about the public having trust that there is confidentiality of the advice that they are getting and the comments that they are giving to their solicitor. I totally respect that position but we have to try to help to ensure that there is a practical solution to the use of surveillance and ensure that we give clarity to those who may be affected by setting out in the legislation where the higher test would apply and get around the problem that we would have a real difficulty in identifying in advance of a conversation taking place, whether it was about a legal matter or whether it was about the criminality that we are trying to identify. Would you envisage more use of this legislation than given that it is intended for the purpose of preventing and detecting serious crime, which the police would say is their entire reason better? What I would say in relation to that is that what we require is a set of circumstances where we can authorise such activity where it is necessary and proportionate and clearly we are defining here in relation to serious crimes or the risk of serious crimes or public safety being at risk in other respects. I would hope that by the fact that we are tightening the requirements here in terms of authorisation before such techniques are deployed in reality, unless there is an increase in the underlying need for this surveillance to take place in terms of the increased prevalence of serious crime, which I am sure all members of the committee would hope will not happen, there would not need to be an increase in the use of surveillance as a result of that. Indeed, it is tightening up the requirements to deploy such surveillance to make it more difficult and have to go through more checks and balances to make sure that it is properly scrutinised before it is deployed. I would hope that it will give people confidence in the wider community that an appropriate approach is being taken here to making sure that the surveillance techniques and the use of human resources in terms of informants and others are only being deployed where it is necessary and proportionate to the crimes that are believed to be undertaken. Can you just go through the practicalities of—let's stick with the lawyer confidentiality book where there's a real test of human rights and confidentiality and privilege. How would this operate? Who would apply to the commissioner? What kind of evidence would be put before them? How would it be set about by me, when you're trying to make sure that there's not a fishing expedition, the committee wouldn't want Sunday just to be without there being due cause to be doing it? Could we maybe just go through how it works? That would be helpful to me, I think. Police Scotland think that this person is up to serious crime. They're going away to talk to their lawyer or they're in prison going to talk to their lawyer. What's the process then? We certainly know that clearly consultation with a lawyer can happen in a number of different situations. What's the process of getting to being able to do this co-vert surveillance? We would certainly require, in terms of the authorisation, that there's an enhanced degree of oversight, obviously, in terms of the office of surveillance commissioners. But if an investigation requires a degree of surveillance or the necessary to enter premises and under the other statuions— Sorry, minister. I just want to go to the lawyer bit so that you know who goes to whom, presents what, when does the authorisation go and how is it done? Well, I'll bring in Graham Walker if that may be helpful. Yes, that would be helpful. I mean, I could go through the chat and verse about how that procedure works. Okay, so we're talking about serious crime, so by the point that the police will be thinking about seeking an authorisation, they will have a body of information and intelligence to hand that they will be required to put into an application form that clearly sets out why they believe that it is first of all necessary, and that will give background to the individual that they're interested in and what that individual's activities entail. Once they've set out why they feel it's necessary, they will then go on to set out why they feel it's proportionate to do that, and that will require them to explain that this is the only way that they can get the information that they've tried other methods, that those methods have failed or they're just impractical. That then goes to the authorising officer. In this case, the authorising officer will be the chief constable or one of the chief constables' designated officers. If it goes to a designated officer, that will be an ACC or above. If that authorising officer is content with the application form, they will authorise the surveillance. That will then be transmitted to the officer of surveillance commissioners, who will require to approve it before any surveillance can take place. The Office of Surveillance Commissioners is an independent, judicially led body. They're based in London, but they cover the entire UK. The commissioners and the chief commissioners are appointed under both RIPAA, the UK Act and RIPSA, the equivalent Scottish Act, and they're basically there to oversee that any use. The Chief Surveillance Commissioner is an ex-high court judge. There are two commissioners who provide knowledge of Scots law—that's Lord Bonomy and Lord McLean—or the current Scottish commissioners. It's a fairly high-level judicial oversight that's applied, and they will reassure themselves that they're content with the necessity and proportionality before they give the okay, if you like, for the surveillance to take place. The law will be unaware that this is happening, as will her client. That was helpful. I just wanted to see how it worked practical terms. Alison Johnstone, sorry, John. A very final brief question is about the impact assessment, minister. What we're told here is that there are no equality impact issues, and an EQIA has therefore not been completed. It is extremely unlikely that any particular group will be impacted by the provisions contained in the code. Given the work that's often taken covertly at UK level, is that genuinely the belief? I'd go back to the original point. We're not giving any additional powers here to the investigative authorities. We're actually, if anything, making it tightening up here the regulation of these powers. We're not putting anyone at any disadvantage. We're making it, if you like, harder and applying a higher test to the use of these surveillance technologies and human resources. I'd be helpful if Mr Finnie might explain why he's concerned about the equality impact issue there, because maybe I'm just misreading what he's saying. If the existing arrangements disproportionately impact in a certain category—and I'm thinking of young Muslim men—the new arrangements, although they might not additionally impact, it still would be a disproportionate impact to them. I understand the point that Mr Finnie is making. I would turn to the point that this is not changing the landscape in terms of additional powers that might be required. I could understand the point if it was going to increase the likelihood that someone who was perhaps Islamic faith might be targeted for surveillance for a particular reason. That is, if you like, as a level playing field, in a sense, it is affecting everybody, regardless of whether they are background, if they are suspected of a serious crime, they would be subject to the test in any case. However, we have a higher test being applied here for the use of surveillance, the deployment of surveillance, and ensuring that it is applying a higher degree of certainty that this is necessary and proportionate. I would hope that it would improve the targeting of that, and it was more evident that it was necessary and proportionate to use surveillance in each and every case that was deployed, rather than it is at the moment. The impact, if you like, would hopefully be a positive one rather than a negative one. That would be my interpretation, but I appreciate the point that Mr Finnie is making. I am certainly very mindful of the fact that we want to avoid any situation where we seem to be unfairly treating any particular group within society. For the avoidance of doubt, I am not questioning the bona fides of the Scottish Government in relation to that. I am just wondering how realistic it is to have this tight regime apply to bodies over which the Scottish Government, indeed the Crown Office, Procurator Fiscal, the Lord Advocate, who is responsible for the investigation of crime, has no direct control, and that is the UK bodies. I appreciate the point that Mr Finnie is making. Alison Fuller by Roderick. Thank you. The client lawyer privilege is a fundamental right, and we already have the iniquity provision, which is appropriate, and that allows covert surveillance where the privilege is being abused for criminal purposes. The Dean of the Faculty of Advocates does argue that that goes further than that. I think that we should only be straying from this in compelling and exceptional circumstances. Minister, you have talked about, if there is a concern about serious crime. The debate in the United Kingdom at Westminster was round about national security or threat to life. You have widened that out to serious crime, as far as I can hear. Can you give me some examples of where you think that this would be appropriate to take it? If you bear with me, convener, I am just going to get my notes. I think that the point is understood. We appreciate the point that is being made by Mr Wolf in relation to the use of broadening that out. It is worth stating that serious crime is defined in statute, and if I could just relay this to the committee, it gives us, hopefully, a degree of clarity about what we mean. Serious crime is defined in terms of legislation as references to crime or references to conduct, which constitutes one or more criminal offences or is or corresponds to any conduct. If it had all took place in any one part of the United Kingdom, it would constitute one or more criminal offences, and part B of section 6 of the Rips Act 2000, which is references to serious crime or references to crime that satisfies the test in subsection 7A or B below. Part A is that one of the offences that is or would be constituted by the conduct is an offence for which a person who has attained the age of 21 and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of three years or more or B, that the conduct involves the use of violence, results in substantial financial gain or conduct by a large number of persons in pursuit of a common purpose. It is worth putting that on record as the definition of what constitutes serious crime. I take the point that Alison McInnes makes about different definitions being used at UK level and at the Scottish level. We believe that that is proportionate. We believe that similar measures have been tested through the courts already in terms of a GR of RIPA has already been undertaken and similar approaches have been taken so far. I might be bringing Kevin Gibson on this point if I may convener shortly. However, that has stood up in terms of its application relation to ECHR. We believe that we are bringing forward a package today to the committee that is compliant with ECHR, which is proportionate and satisfies the necessary adjustments that we need to make in light of the court decision in Northern Ireland. If I could bring in Kevin Gibson on this point. I do not have a great deal to add to that. I have to say that the test in the UK legislation, the national security aspect of that, is an additional element in the UK legislation. It also deals with serious crime in the same way that we do. It can authorise those types of surveillance in relation to national security and serious crime, where, for obvious reasons, we can only do it in relation to serious crime. At Westminster, assurances were given to my colleague Baroness Hamway that such information obtained can only be used to counter a threat and not for criminal proceedings. Do you give the same assurance here to the committee? What we can say is that, in relation to the approach in Scotland, the codes of practice require this type of directives' feelings to be used in compelling circumstances such as where there is a threat to life or a threat to life or limb. I hope that that gives a sense as to the gravity of the potential crime that might be assessed to be a risk of before it is deployed. The terminology used may differ, in some respects, from a similar high test that is being applied to the deployment of surveillance. My point is, minister, that information obtained by the intrusive surveillance of the client lawyer privilege should only be used to counter the immediate threat to life and not for further criminal proceedings. Are you able to give that a guarantee? I believe that that is the case, but I have just checked with Graham Walker that that is the intent of the approach that is being set out. That is the intent, yes. I cannot use evidence obtained under the covert surveillance in criminal proceedings in court, because the person has not been made aware of the rights. Surely you are just using it for investigatory purposes, and thereafter, whatever is achieved, is that not the point as well? That ties in very well with the point that has been made about life or limb, the threat. Obviously, if it is used to help to prevent an immediate threat to someone's life or limb, then that is a legitimate use of observation. Yes, but not in court proceedings. That is what I am confirming, convener. Is there a demarcation line between the person being aware of the rights to be silent? I am just asking that you cannot use that evidence. It cannot seep in to court proceedings, trials, surely? If I can maybe defer to Kevin on this issue in terms of the legal position, but that is my understanding, convener, but just to clarify. I mean, yes, it is very unlikely that you would be able to use it in criminal proceedings for no other reason than the fact that it is legally privileged information. Thank you. I just want to clarify, and that was part of the point that made Roderick. Can I refer to my register of interest as a member of the Faculty of Advocates? Minister, reading or the submission from the faculty, I read it as the faculty taking the view that the, as I am quoting, question whether the statute of instruments draw the boundary sufficiently tightly given the importance of lawyer client confidentiality. And Mr Wolff in his submission goes on to make the point that where there is a reasonable apprehension that the iniquity exception applies in relation to serious crime, the surveillance or the use of the source may of course be characterised as necessary for the purpose of preventing or detecting serious crime, so accepting that that's kind of necessary and proportionate. Then he goes on to say the converse is not necessarily true. Indeed, the draft code of practice states legal privilege does not apply to communications, made with the intention of furthering of criminal purpose. I read it as a concern about a theoretical position where there would be a lack of reasonable apprehension, but I'm wondering in a practical sense to what extent, if it was felt that there were such issues, the draft code of practice could be kept under review and to what extent, if at all, there is any kind of accountability as to the operation of this. Well, I think that Roger Campbell and the faculty of advocates have raised important issues. I mean, I do accept the point that I was making in relation to Mr Finnie's comments earlier on as well, the importance of protecting the trust that there is between a lawyer and their client and the degree to which the system depends on that trust. I respect the opinion that has been put forward by Mr Wolf, Mr Campbell and Mr Finnie in relation to the issue. We obviously have a situation where there may be circumstances where the operational requirements that require a surveillance operation to be undertaken may not be focused on the lawyer or indeed the legal communications at all. At the point that I was making earlier on, probably in a hamfisted way to Mr Finnie, were there circumstances under which you have to define, you have a choice between looking at it from the point of view of the premises or location, which advice has been given versus the general principle that you could particularly do surveillance at any time and on whether you need to have the regulations that work on a non-property specific basis. The activity itself will nevertheless result in privileged communications being obtained inadvertently as a result of regulation. We are seeking to create a regime that allows the operational requirement, as I said, to be achieved, while at the same time acknowledging that a higher level of protection needs to be afforded to the matters that are subject to legal confidentiality. We are doing, I suppose, in a nutshell the best we feel we can to try and protect the rights of the individual and the necessity to protect the confidentiality of legal advice, except in very unusual circumstances where some of that is being undertaken or planned. I hope that we can keep under review the operation of the code of practices. If there are concerns about how the techniques are deployed in practice, we can reflect on that. We are making the best stab, but we feel at this moment of time at attacking the issue at hand, but that does not mean that it is set in stone. If it transpires, there are difficulties and clearly we will listen to representations from the legal profession and other stakeholders if there needs to be modifications and dress those in due course. Thank you, minister. I am grateful for that reassurance. I think that it is as well to stress that the faculty's evidence is that the regulations are an improvement on the existing state of play. It is just that we are concerned with the 100 per cent... We should lose sight of that. The only thing that concerns me—I know when the legislation went through, first of all, which I wanted to try for an amendment in which I failed with, as usual—was how would you know that you had been under surveillance? You are telling me that we are going to keep it under review, but how would a lawyer—let's go back to the lawyer client confidentiality—how would they know? They would not know that they had been under surveillance and it all turned out to be wrong and it was misapplied. Who guards the guards here at the end of the day? I am grateful for the opportunity to raise the point. The Office of the Surveillance Commissioner will obviously have access to knowledge about the extent to which this is being deployed by all the different relevant bodies that can deploy surveillance, so they effectively are a repository of what is happening on the ground. They can obviously keep an eye on the practice and, if they have concerns, they would plan to review the deployment of surveillance under these guidelines. Hell with the people! If the faculty is concerned—I agree with her—I say that she is quite right, this is a tightening up and it is welcomed by the dean and they did not object with the previous dean and this is kind of late in the day. I understand that, but you are asking—you have got the Office of the Commissioner looking at it to say, well, I do not think that that was appropriate at that stage, but then the other people—nobody else knows—or do they? Do we get told? Is there any data here that tells us where it is being misapplied or is that something that is secret? It is not necessarily a secret. I think that the point about the data as to how often this is being deployed and what circumstances and how appropriate it is is worth reminding the committee that, clearly, the commissioner can refuse an application. If they feel that it is inappropriate, I would hope that they would take necessary action to refuse an inappropriate application for surveillance, but clearly they are monitoring what in effect they regard as necessary and proportionate use of surveillance and can keep under review the data so that they will understand to what extent there is any trend, if there is a trend indeed in the deployment of this over time to pick up Mr Finnie's earlier point and perhaps what groups of people it is being affected. We do not have access to that information to be able to monitor that ourselves, at least if I am aware of it. We rely a lot on the Office of the Surveillance Commissioner. It is what they are charged to do is to ensure that there is probity, if you like, in the use of surveillance. What the Office of the Commissioner has said or done or evaluated, we would not know that. I understand that you have got to protect serious criminal investigations. I understand that, but it is a balance here. I agree, convener. There obviously is a balance, but I do not know whether Graham Watkins can add anything on the relationship in terms of how the commissioner can review this information and to what degree he can ascertain the probity of it. There are two aspects to the commissioner's role here. The first aspect is one that I described earlier, where he requires to either approve or quash an application. The second aspect is one of annual inspection. Police Scotland will be inspected every year by commissioners and inspectors, and they will go through the various paperwork and reassure themselves that everything is as it should be. If there are any recommendations to make on their findings, they will make those to the chief constable, and chief constable will be obliged to remedy those. On the matter about whether people will know that they have been subject to of surveillance, I suppose that the answer to that will be if it has been done properly, then no, they will not. However, anyone who feels that they have been subjected to unlawful surveillance and that they have any suspicion that they have been surveilled illegally, there is a body called the Investigatory Powers Tribunal that they can appeal to, and that tribunal would take forward their complaint and respond accordingly. Have there been any applications to it? The tribunal is established under RIPAA and RIPSA, and there has been a number of appeals to it since it was established back in 2000. It has a website that lists its various cases and the decisions that it has made. I could not put a number on it. No, but we can find out. Yes. I am sorry, I have got Margaret Allain and John, but I will take the others first place who have been in a long-time Margaret Allain. Thank you. Good morning, minister. Obviously, this is a fundamental right that the client and lawyer privilege. It is right that colleagues have been quite robust in questioning you this morning, minister. However, much has been made of Mr Wolf's late submission. I note that he did not take the opportunity to take part in the consultation. No one has really mentioned the fact that there were, I think, seven consultees, none of them opposed this. They included the Law Society, the Inspector of Constabulary, Police Scotland, the Scottish Human Rights Commission, and the Information Commissioner, plus two others who wanted to remain anonymous. That is quite significant in itself. I also took totally on board your point in your opening statement, minister, where you said that where the test that was suggested by Mr Wolf to be applied, that is a reasonable basis for apprehending that legally privileged communication is made with intention of furthering a criminal purpose or the lawyer is himself party to criminal activity, is practically impossible to determine that in advance. On the basis, the proportionate explanation of compelling being a risk to life for limb means that the Government has done a good job in really striking the right balance and given the protection necessary in what is a very serious situation. I know that, like Margaret Mitchell before me, I noted that the majority of respondents had not actually raised this particular concern from Mr Wolf. It came in fairly late in the day. However, the letter to us was dated 9 December, and he said in it that he had raised the issue with the appropriate official in the Justice Department and copied the letter to Mr Matheson. I wondered if there had, I know that it has been the Christmas period, but there had been any opportunity to respond to Mr Wolf and whether or not you had any indication from him, whether he had been reassured by any response from you. If I may direct that to Graham Walker, who I believe is the official being referred to in the letter, convener, I am not aware of any feedback that has been given to the faculty, but maybe Graham can… Mr Wolf called me a day or so before you received his letter to, first of all, apologise for having missed the consultation and secondly, just to let us know that he would be writing to the committee. There was a general conversation between he and I about what the legislation was trying to do, and I think his thoughts were very much set out in his letter. He accepted that what we were doing was a significant tightening up, but he still had his professional concern that was set out in his letter. There hasn't been an official written response to him. In terms of the UK legislation, I mean, note that we have actually, that this legislation is tighter than the UK legislation. In terms of Mr Wolf's concerns, is the UK legislation tighter than us? I mean, I find it quite difficult to get to grips with his actual objection to it, and I wasn't quite sure whether he was saying, we should have gone even further. We've gone further than the UK legislation, but we should be going even further again, or whether he was actually pointing out some deficiency in the approach from the Scottish Government. If I may convene a response to that point, my understanding is that the approach taken in Scotland and in England is similar. In that respect, we're not doing anything that hasn't been done in relation to RIPA in England. Indeed, we're trying to ensure that we've got across the UK that we're reflecting the outcome of the decision in respect to Northern Ireland and responding to concerns about ECHR. In that respect, we haven't done anything additional to maybe upset faculty of advocates in that respect. I do understand the point that has been made by Mr Wolf on behalf of faculty of advocates. I'm very grateful to Margaret Mitchell for reminding us that the majority, in fact, all of the respondents were broadly supportive of the approach that we are taking here. I do understand that the concern is a more general one about the extent to which any access should be given to client-lawyer discussions. That's the more fundamental issue that Mr Wolf is directing his comments to. Presumably, that was already the case. Given that the legislation is actually improving the situation, it's currently the case. Indeed, that is my view. We're making it less likely that someone could have their privileged discussions with their lawyer contravened here in terms of the surveillance. Thank you. John, have you got a short one now? Yes, I have indeed. It is, for the minister, perhaps more likely to be answered by Mr Wolf. It is about the reference made to the number of applications. Would it be competent for any body outwith Scotland to make application under the legislation? The bodies that can make application are named in RIPSA. UK bodies will be caught by the equivalent order made under RIPA. Even if that was for surveillance operations in Scotland? It would depend on what the surveillance operation were for. If it was for a reserve function, such as national security, then it would be made under RIPA. If it was for a serious criminal matter that straddled the border? If it was for a serious criminal matter, the likelihood would be that it would be Police Scotland, that it would be making application. Were it the national crime agency, then the national crime agency would make that under the equivalent order made under RIPA. There's a provision within RIPA that recognises that some bodies function throughout the UK. At the time that RIPA was made, that was previously in NCA with SOCA. Rather than that, the UK wide body having to apply one regime for south of the border and a different regime for north of the border is acknowledged in RIPA that operate UK wide and make their authorisations under RIPA. It goes through exactly the same process in terms of application, authorisation and oversight. Can I ask who would be in charge of that criminal investigation in Scotland that relies on the legislation if it was a UK body that was doing it? It would be the UK body that would be in charge of the... What role would there be for the Lord Advocate? Whichever body applies for the activity would be the one that is responsible for it. Reporting to the Lord Advocate in Scotland? Yes. Can there be joint applications that would cover, if it was Police Scotland, together with some UK straddling, a joint application? Yes, an application could specify that, for example, Police Scotland and the NCA are working together. One of those bodies will take the lead and get in the authorities' place. Thank you. Alison Fallon about Christian. You said that the Surveillance Commissioner had to authorise or not the application. Can you give the committee an indication of the number of applications that have been in the last year and any refusals that have been? We can't give that information. I'm afraid to committee that. That's information that is held by the commissioner. As I understand, they have in the past responded that they would not publish that information, so we don't have access to it. I'm afraid to provide to the committee today. So how are you able, as minister, to understand whether or not this legislation is being appropriately applied? We will have an on-going dialogue about the implementation of the legislation. I'm happy to come back to the committee through written form, if I may convener, just about how we propose to undertake engagement with the commissioner about the effectiveness of the legislation in due course. I don't know whether I can maybe ask Graeme if there's been any discussion with the commissioner about how they wish to take that forward at this stage. The officer's surveillance commissioner makes an annual report. Those reports are laid in the Scottish Parliament and the Parliament of Westminster, so any indication that they are dissatisfied with the way things are working will most likely be set out in that annual report. There are figures provided in a number of tables at the end of the reports. I'm not sure that they will be as specific as the committee might want them to be. When they are broken down, I believe, I imagine to Scotland versus other geographical territories. I think that they are. We can maybe come back to the committee with information previous examples, if that would be helpful. A couple of clarification, if I may. I heard Margaret Mitchell talking about that everybody agrees with the Government, and it's great to see that everybody accepts that as the committee goes in the right direction. One I would like clarification on is how come everybody agrees? And yet, if he had not been for the case in Northern Ireland, nothing would have happened. Did any of his bodies made any recommendation beforehand? I'm not aware of anything, but if I can check with colleagues, maybe with Kevin Gibson, if he's aware of any previous concerns being raised prior to that case? I think that that's the first example of concerns being raised about this that we're aware of and we responded as the UK Government did to those concerns. I think that there's a response to case law in this instance. Obviously, some legislation until it's tested entirely sure how noble gentlemen and ladies will actually interpret the legislation. Clearly, in this case, it was not picked up prior to that case being brought to court. In that respect, everybody had to respond to the determination that was made in relation to the Northern Ireland case. The second clarification is what Mr Kevin Gibson said about vescovet operation going into criminal laws. You said that it was very unlikely, but it would. Could you clarify this? I can't comment on what would happen in every individual case. I think that the view that I would take in general terms would be that the information is unlikely to be capable of being used because, first of all, there's an arguable breach of somebody's right to remain silent, not to incriminate themselves if their private discussions are recorded without their knowledge. Secondly, because the information that is obtained might be legally privileged, and legally privileged information is generally speaking not permitted to be... We are not required to disclose that in court proceedings. There would be no need to tighten up maybe the laws and make it clear? I think that it's a separate issue about how the information is used later on. It's not something that is governed by this legislation particularly. Thank you very much. I'm going to conclude the question session there. I think that we've really prized and exercised that one enough. Item 5, move on to that, the agenda of the formal debate, on the motions to approve the instruments that are considered under the previous item. I invite the minister to move motion S1M-11910. The Justice Committee recommends the draft regulatory of investigative powers, covert surveillance and property interference code of practice. Scotland Order 2015 be approved. Firmly moved. We've not really asked questions like that, so I don't suspect that any members want to debate that particular one. Is that agreed? Question is that motion S4M-11910 be agreed to. Are we all agreed? I invite the minister to move S4M-11915. The Justice Committee recommends that the draft regulation of investigative powers and modification of authorisation provisions legal consultation Scotland Order 2015 be approved. Firmly moved, convener. Do any members wish to speak in the debate on the motion if we exhausted all the debating points in the... Yes, John? Mairly to say that the time that's been taken up with this discussion, which has been very helpful, I think indicates the level of concern there is about this whole issue, and I think it's been time well spent. Yes, I have to say that. I mean, I'm now persuaded because of the fact that it's tightening matters up, and yes, the human rights commission don't have concerns, but I think it was important to test the arguments from my point of view, put by the dean of faculty, and that these are markers so that we can see how things turn out and look forward to further details. Now that we've prized the things about the office of the commissioner report, I think that's an interesting measure, and to look further into this. Anyone else wish to add anything to it? The question is that motion S4M-11915 be agreed to. Are we all agreed? We are all agreed, are we? Yes, thank you. And I invite the minister to move motion S4M-11916. The Justice Committee recommends that the draft regulation of investigative powers covert human intelligence sources code of practice Scotland order 2015 be approved. Do any members wish to speak in the debate in the motion? No. The question is that motion S4M-11916 be agreed to. Are we all agreed? Thank you very much. As the members are aware, we require to report on all the affirmative instruments and members are content to delegate their responsibility for me to sign off the report on all three instruments. I thank Cabinet Secretary and his officials for attending today. Item 6 on the agenda. Moving on, next is consideration of three negative instruments. The first is the regulation of investigative powers authorisation of covert human intelligence sources Scotland order 2014, SSI 2014-339. This instrument alters the authorisation arrangements to the conduct or use of a covert human intelligence source under RIPSA. In certain cases, the DPLR committed to not draw the attention of the Parliament to the instrument. Do any members have any comments to make in relation to this instrument? Silence. I'm taking silence as there are no comments. Are members content to make no recommendations in relation to this instrument? Yes. The second negative instrument for our consideration is the mutual recognition of criminal financial penalties in the European Union Scotland number 2 order 2014, SSI 2014-36. The instrument gives effect to framework decision 2009-299GHA in the application of the principle of mutual recognition to financial penalties that aims to enhance procedural rights, where financial penalties have been imposed at trial in the absence of persons concerned. The DPLR committee agreed to draw the attention of the Parliament to this instrument on the grounds that it breached the minimum period between the laying and coming into force of the instrument. That committee, however, was content with the explanation provided to members of any comments to make in relation to this instrument. Is there life out there? Yes. Let's check this one more often. We are on the mutual recognition of criminal financial penalties in the European Union, in other words, you recognise from other parts of other European countries. Just a brief comment of a me, I'm pleased that we have the European arrest warrant in place because I think that it could have been difficult as if these measures hadn't been picked up again, and that was something the committee had monitored over a period. I'm delighted that the UK Government has seen sense on that. It's not really relevant, but you wanted to say it anyway. I thought it was relevant, but there you go. You got that out of your system. Mention the paragraph 19, if that helps in the report. That's why I mentioned it. Absolutely. You correct me. Are members content to make no recommendation in relation to this instrument? The third and final negative instrument for consideration for today is the mutual recognition of supervision measures in the European Union, Scotland Regulations 2014, SSI 2014, 3T7. That gives effect to Framework Decision 2000 9829GH on the European Supervision Order, which promotes mutual recognition within the EU of judicial decisions relating to non-custodial pretrial supervision measures that may be imposed on accused persons in criminal proceedings. Again, the DPLR committee agreed to draw the attention of the Parliament to this instrument, the ground that breached the minimum period between the laying and coming divorce of the instrument. The committee was again satisfied with that explanation given. Do you have any comments, Mr Finnie, in relation to this? I think that it may be paragraph 19 in relation to that, which says that when issuing state issues are warrant and arrest warrant for breach of supervision measures, the European arrest warrant may be used to return the individual back to the issuing state for trial. So I'm very pleased that we have the words. You're there, Roddy. To echo what John Finnie said, but also to note that I think that the committee was right to take these concerns over the up-to-up back seriously and to keep that under review. Right, so our members are content to make no recommendation relation to this instrument. Thank you very much. We now move into private session.