I will get it right this time, convener.
Before the committee are three affirmative instruments that are being made under the Regulation of Investigatory Powers (Scotland) Act 2000, or RIPSA. It is worth pointing out at the outset that nothing in the orders provides any public authority with additional powers.
I begin with the draft Regulation of Investigatory Powers (Modification of Authorisation Provisions: Legal Consultations) (Scotland) Order 2015. In 2010, the House of Lords, in considering an appeal from the divisional court in Northern Ireland, agreed with that court’s decision that directed surveillance under the Regulation of Investigatory Powers Act 2000 of communications between lawyers and their clients breached article 8 of the European convention on human rights, on the right to respect for private and family life.
The secretary of state did not challenge the divisional court’s decision that the procedures used to authorise directed surveillance were disproportionate to the infringement of an individual’s right to a 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 RIPSA, and the relevant provisions of that legislation are for relevant purposes the same as those that have been successfully challenged in the House of Lords. As a result, it is 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 intrusive surveillance, and that reclassification has three main effects that operate to restrict the use of directed surveillance in defined cases and to enhance independent oversight of the process. First, it narrows the circumstances in which directed surveillance can be used to those in which 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 authorisation to be notified to an ordinary surveillance commissioner, and prevents that authorisation from taking effect unless the commissioner approves it. A commissioner will provide that approval only if he or she feels that the authorised surveillance activity is both necessary and proportionate.
As for the fourth order that has been made under RIPSA and which the committee is considering this morning—the Regulation of Investigatory Powers (Authorisation of Covert Human Intelligence Sources) (Scotland) Order 2014—I briefly point out that that negative instrument seeks to put in place a similar framework for the authorisation of covert human intelligence sources, whose activity might involve matters that are subject to legal confidentiality. Again, the order significantly tightens up existing arrangements.
The two remaining affirmative instruments—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, and their purpose is to put in place the revised codes for covert surveillance and property interference and for covert human intelligence sources, and to revoke the existing codes, which were published in 2002. Since the codes were published, there have been a number of changes. As well as reflecting issues to do with legal confidentiality and undercover operatives, which the committee is considering, the codes reflect a number of organisational changes that have taken place over the past 12 years—not least, of course, the amalgamation of Scotland’s police forces into the single Police Service of Scotland.
Thank you, convener, for the opportunity to speak to the orders.