Hansard

I agree, and I will suggest that we progress in that way. I will get to that in a little more detail very shortly.

There have been some limited improvements but, unfortunately, I remain unconvinced that sufficient safeguards and protections are built in to the bill. Throughout the bill’s passage through the Westminster process, I have continued to have dialogue with the Rt Hon James Brokenshire, who I understand has taken a period of curative leave, so I wish him a very speedy recovery.

I have been paying close attention to the debates during the passage of the bill, in the hope that a four-nations agreement would be reached. However, I am disappointed to report that, despite very candid engagement with the UK Government, it has not made amendments to the bill that would have addressed my concerns. In my view, which I know many members share, the bill remains deficient.

There has been no movement towards prior judicial approval by a judicial commissioner at the Investigatory Powers Commissioner’s Office. Prior approval has always been my preference. That is supported by the Lord Advocate, from his perspective as head of the system of prosecution, as well as by the chief constable. Having followed the debate at Westminster, I can say that my preference for prior judicial approval has become stronger.

I know that the Law Society of Scotland, which has sent a briefing to MSPs, shares that view on prior approval. By providing—before any activity takes place—independent judicial scrutiny of the decision that is reached by the authorising officer for criminal conduct authority, prior approval would, in my view, go a long way towards addressing the legitimate concerns that have been expressed in various quarters.

During the House of Lords stages of the bill, the need to address non-permitted conduct in some way in the bill has also been raised. It has also been raised by many respected human rights organisations. I acknowledge and share that concern, but I also recognise, of course, that that issue is not always straightforward, especially if it is not dealt with on a four-nations basis. Nevertheless, I am not convinced that the bill adequately covers the matter.

I know that the Conservatives have relied on the Human Rights Act 1998, but Conservative members will forgive me for saying that theirs is the party that has instructed a review of that act, so their position is somewhat disingenuous.

This is a complex area of law; I acknowledge that the forthcoming Court of Appeal judgment might require a legislative remedy. That point allows me to close in on the point that Neil Findlay made. We will not know until that judgment is known what, if any, remedial action will be required to amend the Regulation of Investigatory Powers (Scotland) Act 2000. As the Scottish ministers cannot recommend to the Parliament that it consent to the bill, there might be a need for emergency or expedited legislation to cure an immediate consequence arising from the Court of Appeal judgment, when it is known. That would, of necessity, be no more than a sticking plaster to ensure the security of police operations. If such a measure is required, it will be only a stop-gap to allow for a full assessment of the court judgment, which will, in turn, inform any subsequent measures that this Government or a future Government, post elections, has to put in place. We will do that in the fullness of time and with full parliamentary scrutiny.

I am unable to recommend to Parliament that it consent to the bill.

I move,

That the Parliament agrees not to consent to the UK Covert Human Intelligence Sources (Criminal Conduct) Bill, as it contains insufficient independent oversight and satisfactory safeguards.