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Resolved in the affirmative, and amendment agreed to accordingly.
I draw noble Lords' attention to paragraph 9 of the Explanatory Memorandum, which notes that the Crime (International Co-operation) Bill is not expected to receive Royal Assent before July 2003. That has changed since the laying of the memorandum. The Bill is expected to receive Royal Assent before the end of this parliamentary Session, probably in November 2003.
The instrument we are considering today is constitutional in nature. Pursuant to Section 63 of the Scotland Act, it transfers to Scottish Ministers functions that are exercisable "in or as regards Scotland", which is commonly known as executive devolution. It does not alter the legislative competence of either the UK or Scottish parliaments.
The order will enable Scottish Ministers to authorise interception warrants in response to requests for mutual assistance on interception matters relating to serious crime in Scotland. Those authorisations would be made as a result of requests from abroad for interception on targets located in Scotland or requests from the Scottish police or Her Majesty's Customs and
The proposed transfer of functions is in line with current practice in two ways. First, as a result of a previous Section 63 order (SI2000/3253), the Scottish Ministers already sign interception warrants relating to serious crime in Scotland. Secondly, the Scottish Executive already deals with all other requests for mutual assistance in criminal matters as they relate to Scotland. The Scotland Office has worked with the Home Office and the Scottish Executive to pull the order together. Executive devolution orders are considered by both Houses of Parliament, using the affirmative procedure, and are also scrutinised by the Scottish Parliament. All parties have agreed the text and policy effects of the order.
Noble Lords have in the past found it useful to be told the particular sections of the Scotland Act being used to make subordinate legislation. Section 63 confers a power on Her Majesty to provide by Order in Council for any statutory or non-statutory function of a UK Minister of the Crown, so far as they are exercisable in or as regards Scotland, to be exercisable by the Scottish Ministers, either instead of, or concurrently with, the UK Minister of the Crown. It also allows functions to be carried out by a Minister of the Crown with the agreement of or after consultation with the Scottish Ministers. In that instance, the Scottish Ministers will exercise the functions instead of the Minister of the Crown.
Article 2 of, and Schedule 1 to, the order set out the extent to which the functions concerned are to be regarded as affecting Scotland for the purposes of the order. That procedure is provided for in Section 30(3) of the Scotland Act 1998 and is commonly known as a paving provision.
Under Section 5 of the Regulation of Investigatory Powers Act 2000 (RIPA), the order then transfers certain functions relating to international mutual assistance. In practical terms, Article 3 of and Schedule 2 to the draft order transfer functions in relation to the issue of interception warrants pursuant to Section 5(1)(b) and (c) of RIPA. Those functions will be exercisable in or as regards Scotland for the purposes of preventing or detecting serious crime or, in equivalent circumstances, for the purpose of giving effect to the provisions of any international mutual assistance agreement.
Under Section 5(1)(b), Scottish Ministers will be able to issue a warrant authorising the Scottish police or Her Majesty's Customs and Excise to request interception to be conducted abroad in furtherance of an investigation being conducted in Scotland.
Under Section 5(1)(c), Scottish Ministers will be able to issue warrants authorising interception on targets located in Scotland in response to requests from abroad. Warrants under either Section 5(1)(b) or Section 5(1)(c) can be issued only in accordance with an international mutual assistance agreement designated under RIPA.
In the first instance, that will be the EU Mutual Legal Assistance Convention, so requests under Section 5(1)(b) will be for interception in other EU member states and requests under Section 5(1)(c) will be requests for interception in Scotland by EU law enforcement agencies.
The Explanatory Memorandum clearly explains the convention, which, in short, concerns the improvement of judicial co-operation by updating the existing provisions governing mutual assistancefor example, those included in the Council of Europe Convention on Mutual Assistance in Criminal Matters of 1959. The purpose of today's order is to assist in that improvement.
Noble Lords will also have noted in the Explanatory Memorandum that the Crime (International Co-operation) Bill, currently going through Parliament, will implement those provisions of the convention not already in legislation.
Supplementary functions under Sections 9, 10 and 15 of RIPA are also being transferred to Scottish Ministers by this order. They concern the ongoing administration of the functions being transferred under Section 5 of RIPA; for example, the duration, cancellation and renewal of warrants, the modification of warrants, and general safeguards on restrictions on the use of intercepted material.
Enabling Scottish Ministers to deal with requests for mutual assistance in interception matters as they relate to Scotland would, therefore, be entirely consistent with existing practice and the spirit of the EU Mutual Legal Assistance Convention. It is worth noting also that no regulatory impact assessment has been prepared in relation to this instrument as it will have no significant regulatory impact on society, industry or local government. I commend the order to the House.
Moved, That the draft order laid before the House on 24th June be approved [24th Report from the Joint Committee].(Lord Evans of Temple Guiting.)
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