Hansard

I thank the cabinet secretary and, especially, the relevant agencies for their engagement on the matter. In my three minutes, I will argue against the motion and ask Parliament to give legislative consent.

The cabinet secretary has said that covert human intelligence sources

“can be vital to the gathering of sometimes lifesaving intelligence that cannot be gained any other way, or to disrupting serious crime and security threats to the nation.”

He went on to say that in Scotland the activity is used to tackle organised crime groups that are

“involved in drugs and weapons running, human trafficking, child sexual abuse rings and terrorism plots”,

and he concluded that a source’s

“participation in criminal activity may at times be necessary”.

The ability to carry out that vital work currently lacks a statutory foundation. A court case that relates to covert sources has been brought against the UK, and the Court of Appeal will soon promulgate its judgment on the case. It is possible that the court will find that the current system of covert surveillance is unlawful. In that event, the UK will have no basis for undertaking covert surveillance into, for example, terrorism, cybercrime, people trafficking and drugs running.

The UK bill anticipates that and sets a statutory framework that will allow our security services and police to continue to protect us. It contains provisions to ensure that such practices can continue in Scotland—hence the request for legislative consent.

In 2019, the independent Investigatory Powers Tribunal said that the policy of authorisations that the bill enshrines

“has been exercised with scrupulous care ... so as to discharge ... essential functions in protecting national security, whilst giving proper regard to ... human rights”.

The UK Government has tried to accommodate requests from the Scottish Government, including a request for an agreement from operational agencies to discuss a memorandum of understanding with the Crown Office and Procurator Fiscal Service.

However, the cabinet secretary is asking Parliament not to consent to the bill. If Parliament does not consent, the UK Government will remove Scotland from the bill’s provisions. The practical impact of that will be that agencies such as Police Scotland will continue to rely on existing legal bases for authorisation. The Court of Appeal will then give its ruling. Should that ruling find against the current practices, the UK approach will allow crime prevention through covert monitoring to continue in England and Wales, whereas in Scotland all such practices will have to cease immediately. Our police will not be able to conduct activity that the cabinet secretary himself has described as being

“vital ... to disrupting serious crime”.

As the cabinet secretary acknowledged, this Parliament would then be required—in the middle of the pandemic—to convene to debate and try to pass emergency legislation, in order to put the conduct on a clear and consistent statutory basis. Every day that would pass without that emergency legislation being in place would be another day on which organised crime, cybercrime and human trafficking could continue unhindered by covert monitoring.

The bill is vital and provides a clear and consistent statutory basis for activity by public authorities to keep the public safe. Failure to give consent risks leaving Scotland’s people exposed. That would be deeply irresponsible. I cannot believe that any MSP would countenance such a situation and vote to create it.