Section 18: Information to be provided to Surveillance Commissioners

74.     Section 18 imposes a duty on every member of a police force and every member of the Scottish Crime Squad to comply with certain requests of a Surveillance Commissioner. This relates to requests for documents or information required by the Commissioner concerned for the purpose of enabling him to carry out the functions of a Commissioner under sections 13 to 17.

Grant, renewal and duration of authorisations

Section 19: General rules about grant, renewal and duration

75.     This section sets out the general rules for authorisations, including their granting, renewal, and duration.

76.     Subsection (1) provides that, in urgent cases, an authorising officer may give an oral authorisation. All other authorisations must be in writing.

77.     Subsection (2) provides that a single authorisation may be given, combining two or more authorisations under this Act. When this occurs, the provisions of this Act which relate to one type of activity only shall apply to those parts of the authorisation which authorises that type of activity. Further provisions for combined authorisations are in section 11(4).

78.     Subsection (3) provides that oral authorisations and those granted by officers entitled to act in urgent cases in the absence of the authorising officer or his designated deputy will expire after 72 hours, beginning with the time when the grant or renewal of an authorisation takes effect.

79.     Except where granted or renewed orally or by an officer entitled to act in urgent cases, authorisations for the use of covert human intelligence sources will last for 12 months, beginning with the day on which the grant or renewal takes effect.

80.     Authorisations for the use of intrusive or directed surveillance will last for 3 months. The time limits in subsection (3) are all subject to subsection (8).

81.     Subsection (4) provides that an authorisation may be renewed at any time before it ceases to have effect by any person entitled to grant a new authorisation of the same type. The same conditions attach to a renewal of surveillance as to the original authorisation. However, before renewal of an authorisation for the conduct or use of a covert human intelligence source, subsection (6) requires there to be a review of the use made of that source, the tasks given to that source and the information so obtained.

82.     Subsection (5) applies sections 6 to 18 in relation to renewal of authorisations on the same basis as those sections apply to grants of authorisations.

83.     Subsections (6) and (7) impose conditions for the renewal of an authorisation for the conduct or use of a covert human intelligence source. The person who is empowered to renew the authorisation must be satisfied that a review has been carried out of the matters mentioned in subsection (7) and has, for the purpose of deciding whether he should renew the authorisation, considered the results of that review. The matters which must be reviewed are specified in subsection (7) and are the use made of the source in the period since the grant or, as the case may be, latest renewal of the authorisation and the tasks given to the source during that period and the information obtained from the conduct or the use of the source.

84.     Subsection (8) gives power to the Scottish Ministers to specify by order shorter periods than those mentioned in subsection (3).

85.     Subsection (9) provides that a renewal of an authorisation shall take effect not from the time of renewal but from the day the authorisation would have ceased to have effect, but for the renewal.

Section 20: Cancellation of authorisations

86.     Subsection (1) sets out when the person who granted or renewed an authorisation must cancel it.

87.     Subsection (2) provides that where an authorisation was granted or renewed by a person entitled to act for any other person, then that other person must cancel it in accordance with subsection (1). However, by virtue of subsection (3), where it is not practicable for this person to cancel it, an authorising officer's deputy (defined in subsections (6) and (7)) who granted an authorisation is also under a duty to cancel an authorisation in those cases where he would have had the power to act on the authorising officer's behalf.

88.     Subsections (4) and (5) provide for the Scottish Ministers to make regulations setting out how the duty for cancelling authorisations should be performed where the authorising officer is no longer available and on whom such a duty should fall.

89.     Subsections (6)and (7) define the references to a person's deputy and designated deputy.

Chief Surveillance Commissioner

Section 21: Functions of Chief Surveillance Commissioner

90.     This section outlines the functions of the Chief Surveillance Commissioner, who is appointed under section 2(1) of this Act, in keeping under review the use of powers or duties conferred or imposed by this Act.

91.     Subsection (3) imposes a duty upon the Chief Surveillance Commissioner to give the Tribunal established under section 65 of the Regulation of Investigatory Powers Act 2000 all such assistance (including his opinion as to any issue falling to be determined by the Tribunal) as is appropriate in connection with the investigation of any matter by it or otherwise for the purposes of the Tribunal's consideration or determination of any matter.

92.     Subsection (4) makes it clear that subsection (1) does not apply in the case of any power of the Scottish Ministers to make, amend or revoke any subordinate legislation. Accordingly, the Chief Surveillance Commissioner does not have a function to review the exercise of any such power.

Section 22: Co-operation with and reports by Commissioner

93.     Subsection (1) requires that all those who may be involved in requesting, authorising, carrying out or using the products of surveillance or covert human intelligence sources should disclose or provide to the Surveillance Commissioner all documents and information required by that Commissioner.

94.     Subsection (2) imposes a duty upon the Chief Surveillance Commissioner to make a report to the Scottish Ministers with respect to any case where he considers that there has been a contravention of the provisions of the Act in relation to any matter with which the Commissioner is concerned and where the contravention has not been the subject of a report made to the Scottish Ministers by the Tribunal established under section 65 of the Regulation of Investigatory Powers Act 2000.

95.     Subsection (3) imposes a duty upon the Chief Surveillance Commissioner to make an annual report to the Scottish Ministers with respect to the carrying out of his functions under the Act.

96.     Subsection (4) requires the Scottish Ministers to lay before the Scottish Parliament a copy of every annual report made by the Chief Surveillance Commissioner under subsection (3), together with a statement as to whether any matter has been excluded from that copy in pursuance of the provisions of subsection (5).

97.     Subsection (5) provides that the Scottish Ministers may exclude from the copy of any annual report to be made by the Chief Surveillance Commissioner such matters which it appears to them should not be published because it would be contrary to the public interests, prejudicial to the prevention or detection of serious crime or prejudicial to the continued discharge of the functions of any public authorities whose activities include activities that are subject to the review by the Commissioner.

Complaints by Aggrieved Persons

Section 23: Complaints to the Tribunal

98.     Subsection (1) defines the Tribunal referred to in this Act as the Tribunal established under section 65 of the Regulation of Investigatory Powers Act 2000.

99.     Subsections (2) and (3) set out the key elements of the Tribunal's jurisdiction in relation to this Act. It is to be the appropriate forum for complaints or proceedings in relation to any complaint by a person who believes that he has been subject to any use of investigatory powers under this Act which he believes to have been carried out in the challengeable circumstances described in subsection (4).

100.     Subsection (4) defines what are challengeable circumstances.

101.     Under subsection (5) conduct should only fall within those circumstances if it is conduct which took place with, or might reasonably have been considered necessary to take place only with, the authority, or purported authority, or an authorisation under the Act or an authorisation under section 93 of the Police Act 1997 if given by a Scottish police force.

Codes of practice

Section 24: Issue and revision of codes of practice

102.     This sections deals with the issuing of one or more codes of practice to explain in greater detail the practical arrangements relating to the use of the provisions of this Act.

103.     Subsections (1) and (2) require the Scottish Ministers to issue one or more codes of practice covering the powers and duties in this Act and those relating to interference with property or wireless telegraphy under Part III of the Police Act 1997.

104.     Subsections (3) and (4) require the Scottish Ministers to consult on any code of practice and lay a draft of the code of practice before Parliament.

105.     Subsection (5) provides that a code of practice issued by the Scottish Ministers under this section shall not be brought into force except in accordance with an order made by them. Subsection (6) provides that such an order may contain transitional provisions and savings in connection with the bringing into force of the code of practice.

106.     Subsection (7) provides that the Scottish Ministers may from time to time revise the whole or any part of a code and issue the revised code.

107.     Subsection (8) provides that the provisions of subsections (3) to (6) apply (with appropriate modifications) in relation to the issue of any revised code as they apply in relation to the first issue of such a code.

108.     Subsection (9) sets out the Parliamentary procedure for making an order under subsection (5). A draft of the order must be laid before and approved by a resolution of the Scottish Parliament before the order may be made.

Section 25: Interim codes of practice

109.     This section gives statutory effect to interim codes of practice. An interim code will have effect from its date of issue until it is superseded by a code issued in accordance with section 24.

Section 26: Effect of codes of practice

110.     Subsection (1) requires any person to take account of any applicable code of practice issued under sections 24 or 25 while exercising or performing any power or duty under this Act.

111.     Subsection (2) explains that a failure to comply with a code of practice issued under sections 24 or 25 will not of itself constitute a criminal offence or give rise to liability in civil proceedings.

112.     Subsection (3) allows the evidential use of a code of practice in court.

113.     Subsection (4) requires that, where relevant, the statutory bodies described in this subsection must take into account the provisions of a code of practice.

Supplementary provisions

Section 27: Power to extend or modify authorisation provisions

114.     Subsection (1) enables the Scottish Ministers, by order, to change the types of activities which fall within the categories of intrusive and directed surveillance by providing that a type of directed surveillance will be treated as intrusive surveillance. Furthermore, they may, by order, provide that additional types of surveillance, which are not at present defined as directed or intrusive surveillance in section 1, will be covered by the Act and become capable of being authorised.

115.     Subsection (2) provides that no order shall be made under this section unless a draft of it has been laid before and approved by resolution of the Scottish Parliament.

Section 28: Orders and regulations

116.     Section 28 makes provision with respect to making of orders and regulations under any provision of the Act.

117.     Subsection (2) provides that any order or regulations which the Scottish Ministers have the power to make under any provision of the Act shall be exercisable by statutory instrument.

118.     Subsection (3) specifies that orders or regulations shall be subject to negative resolution procedure before the Scottish Parliament except in the case of the powers to make orders under the sections specified.

119.     Subsection (4) provides that there is power, when making orders or regulations, to make different provision for different cases and for incidental, supplemental, consequential and transitional provisions.

Section 29: Financial provision

120.     Section 29 provides for Scottish Ministers to pay the Secretary of State an amount which will be agreed between them to reimburse the Secretary of State for any expenditure or increased expenditure incurred by him as a result of this Act. This expenditure will be for the Tribunal.

Section 30: General saving for lawful conduct

121.     Section 30 ensures that nothing in this Act makes any actions unlawful unless that is explicitly stated. The availability of an authorisation or a warrant does not mean that it is unlawful not to seek or obtain one. In this respect, the Act must be read with section 6 of the Human Rights Act 1998, which makes it unlawful to act in a way which is incompatible with a Convention right.

Section 31: Interpretation

122.     This section defines the terms used in the Act. Amongst other things, it defines "surveillance" and clarifies that this does not include references to:

• the use of a recording device by a covert human intelligence source to record any information obtained in the presence of the source (subsection (3)(a));

• activity involving interference with property or with wireless telegraphy which requires authorisation or warrant under Part III of the Police Act 1997.

Section 32: Short title and commencement

123.     Subsection (2) provides that the provisions of this Act will come into force on such day or days as the Scottish Ministers, by order, appoint.

PARLIAMENTARY HISTORY

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