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The Regulation of Investigatory Powers (Prescription of Offices, etc. and Specification of Public Authorities) (Scotland) Order 2010

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Scottish Statutory Instruments

2010 No.350

Investigatory Powers

The Regulation of Investigatory Powers (Prescription of Offices, etc. and Specification of Public Authorities) (Scotland) Order 2010

Made

29th September 2010

Laid before the Scottish Parliament

1st October 2010

Coming into force

29th November 2010

The Scottish Ministers make the following Order in exercise of the powers conferred by sections 8(1), 8(4)(b), 9(3) and 28(4) of the Regulation of Investigatory Powers (Scotland) Act 2000(1) and all other powers enabling them to do so.

Citation, commencement and interpretation

1.—(1) This Order may be cited as the Regulation of Investigatory Powers (Prescription of Offices, etc. and Specification of Public Authorities) (Scotland) Order 2010 and comes into force on 29th November 2010.

(2) In this Order “the 2000 Act” means the Regulation of Investigatory Powers (Scotland) Act 2000.

Prescribed offices, etc.

2.—(1) The offices, ranks and positions listed in column 2 of Schedule 1 to this Order (being offices, ranks or positions with the relevant public authorities in column 1) are prescribed for the purposes of section 8(1) of the 2000 Act.

(2) Subject to paragraph (3), where an office, rank or position with a relevant public authority is listed in column 2 of Schedule 1 to this Order, all more senior offices, ranks or positions with that authority are also prescribed.

(3) Where an office, rank or position with a relevant public authority is described in column 2 of Schedule 1 to this Order by reference to an agency, unit, branch, division or other part of that authority, the reference in paragraph (2) to all more senior offices, ranks or positions with that public authority is a reference to all more senior offices, ranks or positions in that agency, unit, branch, division or part.

Additional offices, etc. prescribed for urgent cases

3.—(1) The offices, ranks and positions listed in column 3 of Schedule 1 to this Order (being offices, ranks or positions with the relevant public authorities listed in column 1) are prescribed for the purposes of section 8(1) of the 2000 Act, but only for the cases described in this article.

(2) An individual holding an office, rank or position which is listed in column 3 of Schedule 1 to this Order may only grant an authorisation where it is not reasonably practicable, having regard to the urgency of the case, for the application to be considered by an individual in the same authority who holds an office, rank or position listed in column 2.

(3) Where an office, rank or position with a relevant public authority is described in column 2 of Schedule 1 to this Order by reference to an agency, unit, branch, division or other part of that authority, the reference in paragraph (2) to an individual in the same authority is a reference to an individual in that agency, unit, branch, division or part.

Amendment of the 2000 Act

4.  In section 8(3) (persons entitled to grant authorisations under sections 6 and 7) of the 2000 Act omit paragraphs (d) to (g).

Revocation

5.  The Orders specified in Schedule 2 to this Order are revoked.

KENNY MACASKILL

A member of the Scottish Executive

St Andrew’s House,

Edinburgh

29th September 2010

Articles 2 and 3

SCHEDULE 1Prescribed offices, ranks and positions with relevant public authorities for the purposes of sections 6, 7 and 8 of the 2000 Act

Column 1

Relevant public authority

Column 2

Prescribed offices, ranks and positions

Column 3

Urgent cases

A police force maintained under or by virtue of section 1 of the Police (Scotland) Act 1967(2)SuperintendentInspector
The Scottish Crime and Drug Enforcement AgencySuperintendent; Grade PO7 Authorising OfficerInspector
The Scottish AdministrationMarine Scotland: Chief of Enforcement Unit
Accountant in Bankruptcy: The Accountant in Bankruptcy
Scottish Prison Service: Governor in ChargeScottish Prison Service: Deputy Governor
Contracted out prisons: the controller appointed under section 107(1)(b) of the Criminal Justice and Public Order Act 1994(3)
Transport Scotland: Director
A council constituted under section 2 of the Local Government etc. (Scotland) Act 1994(4)Assistant Head of Service; Investigation manager
The Common Services Agency for the Scottish Health ServiceNHSScotland Counter Fraud Services: Head of Investigations
The Scottish Environment Protection AgencyDirector

Article 5

SCHEDULE 2Revocations

Orders Revoked

References

Regulation of Investigatory Powers (Prescription of Offices, Ranks and Positions) (Scotland) Order 2000S.S.I. 2000/343(5)
Regulation of Investigatory Powers (Prescription of Offices, Ranks and Positions) (Scotland) Amendment (No. 2) Order 2003S.S.I. 2003/50
Regulation of Investigatory Powers (Prescription of Offices, Ranks and Positions) (Scotland) Amendment Order 2006S.S.I. 2006/466
Regulation of Investigatory Powers (Prescription of Offices, Ranks and Positions) (Scotland) Amendment Order 2009S.S.I. 2009/340

EXPLANATORY NOTE

(This note is not part of the Order)

This Order prescribes offices, ranks and positions for the purpose of section 8(1) of the Regulation of Investigatory Powers (Scotland) Act 2000 (asp 11) (“the 2000 Act”). Under that section individuals holding such offices, etc may grant authorisations under sections 6 and 7 of the 2000 Act for the use of directed surveillance and covert human intelligence sources respectively.

Article 2(2) provides that where an office, etc is listed in column 2 of Schedule 1, all more senior offices, etc may also grant authorisations under section 6 or 7 of the 2000 Act. Article 2(3) clarifies that if an office, etc is described by reference to an agency, unit, branch, division or part of an authority, article 2(2) only applies to more senior offices, etc within that part of the public authority.

Articles 3(1) and (2) provide that the offices, etc listed in column 3 of Schedule 1 may only grant authorisations under sections 6 or 7 of the 2000 Act in urgent cases. Article 3(3) clarifies that if an office, etc is described by reference to an agency, unit, branch, division of other part of an authority, article 3(2) only applies to more senior offices, etc within that part of the public authority.

Article 4 amends section 8(3) of the 2000 Act to remove a number of health bodies from the list of relevant public authorities for the purposes of sections 6 and 7. These bodies may no longer grant authorisations for the use of directed surveillance and covert human intelligence sources.

As this Order is consolidating, article 5 revokes the previous Orders detailed in Schedule 2.

(1)

2000 asp 11. Section 9(3) was amended by paragraph 9(2)(c) of schedule 6 to the Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10).

(2)

1967 c.77, section 1 was amended by s.146(2) of the Local Government (Scotland) Act 1973 (c. 65) and by paragraph 71(2) of Schedule 13 to the Local Government etc. (Scotland) Act 1994 (c. 39).

(3)

1994 c.33, section 107(1)(b) was amended by paragraph 115(4)(a)(i) of the Scotland Act 1998 (Consequential Modifications) (No. 2) Order (S.I. 1999/1820).

(5)

S.S.I. 2000/343, amended by S.S.I. 2003/50, 2006/466, 2009/340 and paragraph 14 of schedule 6(2) to the Police, Public Order and Criminal Justice (Scotland) Act 2006.

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