Call for evidence on the Investigatory Powers Bill LCM

The Scottish Government lodged a Legislative Consent Memorandum (LCM) on 23 June 2016 for the Investigatory Powers Bill

The LCM explains why the Scottish Government would like the Scottish Parliament to give consent to the Westminster Parliament to legislate in certain areas and to make changes to the powers of the Scottish Ministers in relation to competence.

The Justice Committee must report on the LCM to the Parliament and would very much like to hear the views of experts and stakeholders on the proposed legislation, to inform Parliamentary scrutiny.

The LCM

The parts of the Bill which require the consent of the Scottish Parliament are set out below.

Part 1: 

General privacy provisions: this asserts the privacy of communications and provides for related offences.

Part 2: 

Lawful interception of communications: this provides for interception: acquiring the content of communications.

Part 5: Equipment interference: This concerns equipment interference: interfering with equipment (such as computers or smartphones) to obtain communications, private information or equipment data.

Part 8: 

Oversight arrangements: This sets out new oversight regime arrangements which will replace the three existing commissioners (the Intelligence Services Commissioner, the Interception of Communications Commissioner and the Chief Surveillance Commissioner) with a single new commissioner, the Investigatory Powers Commissioner (IPC). Part 8 also sets out a domestic right of appeal from the Investigatory Powers Tribunal.

Part 9: Miscellaneous and general provisions: this contains miscellaneous and general provisions.

Reasons for requiring legislative consent

More detail on the reasons for requiring legislative consent is set out in the LCM itself.

Part 1

The subject matter of Part 1 of the Act is Part III of the Police Act 1997 (authorisation to interfere with property) which falls within the competence of the Scottish Parliament.  The overarching privacy conditions place obligations on those exercising functions under the Bill, including Scottish Ministers and this alters the executive competence of the Scottish Ministers.

Part 2

Interception of communications is reserved under schedule 5 of the Scotland Act 1998; however there are exceptions to this reservation including the interception of communications to or by those in a place of detention.  These exceptions are legislated for in the Bill. Additionally, Part 2 imposes a limitation on the executive competence of Scottish Ministers with the proposed introduction of judicial oversight on decisions to authorise interceptions.

Part 5

The subject matter of Part III of the Police Act 1997 (property interference) is devolved. This part of the Bill seeks to provide a new equipment interference regime which can keep pace with the development of modern technology and evolving methods of communication and that is consistent throughout the UK.   Additionally, the proposed new warranted authorisation regime for equipment interference is subject to approval by a Judicial Commissioner and would alter the executive competence of Scottish Ministers.

Part 8

This part of the Bill provides oversight arrangements for devolved authorities and bodies and seeks to replace the Intelligence Services Commissioner, the Interception of Communications Commissioner and the Chief Surveillance Commissioner with a single new commissioner the Investigatory Powers Commissioner (IPC) who will be supported by Judicial Commissioners.  In addition, this part will alter the executive competence of Scottish Ministers as it seeks to remove their power to appoint a Scottish Surveillance Commissioner and give regulation making powers to the Secretary for State to modify devolved matters in connection with the functions of the new IPC.

Part 9

Part 9 introduces schedules 8 and 10. Schedule 8 seeks to alter the executive competence of the Scottish Ministers by conferring on them a new power to issue combination warrants while schedule 10 makes minor and consequential amendments, including amendments to the Regulation of Investigatory Powers (Scotland) Act 2000.

Call for evidence

The Committee would like to hear the views of stakeholders on the LCM. It would be helpful if comments could be broken down by reference to each Part of the Investigatory Powers Bill in respect of which the Scottish Parliament’s consent is considered necessary. The Committee does not expect stakeholders to necessarily have comments on all parts of the LCM.

The Committee would like to receive views on both:

  • The devolved areas in which the UK Government proposes to legislate.
  • The extent to which the executive competence of the Scottish Ministers will be altered either by the conferring of additional powers or the limitation of their existing powers.
The deadline for submissions is 5.00pm on Friday 12 August 2016.

Procedure

The Parliamentary Business Bureau will assign the LCM to a Committee.  It is anticipated that the Bureau will refer the LCM to the Justice Committee as the lead Committee.  The Committee will consider the LCM and report to Parliament, which will then vote upon a legislative consent motion on whether to agree to the Westminster Parliament legislating on its behalf.  The Scottish Parliament must vote on the motion before the last amending stage of the Bill at Westminster.

More information on the LCM procedure can be found here:

http://www.scottish.parliament.uk/parliamentarybusiness/Bills/31308.aspx

How to submit your evidence

Written submissions should be in MS Word or similar word processing format, and should be no longer than 4 sides of A4. If your submission is longer than this, please provide a short summary of the main points. Submissions should be set out in numbered paragraphs. If a submission refers to existing published material, it is preferable to provide hyperlinks rather than extensive extracts.

Before making a submission, please read the Parliament’s policy on treatment of written evidence by subject and mandatory committees.

If possible, written submissions should be submitted electronically by email to:

JusticeCommittee@parliament.scot

Hard copy written submissions should be sent to:

Justice Committee Clerks

Room T2.60

Scottish Parliament

Edinburgh

EH99 1SP

Contact

Any queries about written submissions should be addressed in the first instance to the Justice Committee clerking team at the above email address or on 0131 348 5047.

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