The Regulation of Investigatory Powers (Authorisation of Covert Human Intelligence Sources) (Scotland) Order 2014

EXPLANATORY NOTE

(This note is not part of the Order)

This Order alters the authorisation arrangements for the conduct or use of a covert human intelligence source (a “source”) under the Regulation of Investigatory Powers (Scotland) Act 2000 (“the 2000 Act”) in cases where material subject to legal professional privilege may be obtained or disclosed and in cases where the source in question is a constable or a member of a specified policing body. Separate arrangements are made for each class of case.

Part 1 contains general provision.

Part 2 imposes additional requirements to be satisfied in cases where a source may obtain, provide access to or disclose communications subject to legal privilege. Article 3 defines what is meant by “legal privilege” and article 4 establishes a process for notifying and seeking the approval of an ordinary Surveillance Commissioner prior to the authorisation of the conduct or use of a source in those circumstances, including the form such a notice should take. Article 5 requires a Commissioner who receives such a notice to consider whether certain requirements are satisfied and, if they are, to give approval for the grant or renewal of the authorisation in question. An authorisation to which Part 2 applies may not be granted or renewed without such approval.

Article 6 modifies the effect of section 19(3)(b) of the 2000 Act so that authorisations to which Part 2 of the Order applies cease to have effect after 3 months, unless renewed.

Part 3 imposes additional requirements to be satisfied in cases where the source whose conduct or use is to be authorised is a person holding an office, rank or position with the Police Service of Scotland or any other specified policing body (a “relevant source”).

Article 7 provides that an ordinary Surveillance Commissioner must be notified of the authorisation of the conduct or use of a relevant source, save where it is a long term authorisation of such a source, and sets out what is to be contained in that notice.

Articles 8 to 11 make provision about the long term authorisation of the conduct or use of a relevant source. Article 8 provides that a long term authorisation for these purposes is an authorisation which, when taken with other relevant authorisations or renewals, exceeds a period of 12 months. This article establishes rules for determining which authorisations and renewals are to be taken into account when calculating whether an authorisation is long term. The 12 month period is reduced to 3 months in cases involving the grant or renewal of authorisations for the conduct or use of a source to obtain, provide access to or disclose matters subject to legal privilege.

Article 9 establishes a process for notifying an ordinary Surveillance Commissioner before granting or renewing a long term authorisation, including the form such a notice should take. Article 10 requires a Commissioner who receives such a notice to consider whether certain requirements are satisfied and, if they are, to give approval for the grant or renewal of the authorisation. A long term authorisation may not be granted or renewed without such approval.

A person who has been refused approval to grant or renew a long term authorisation may, by virtue of article 11, appeal to the Chief Surveillance Commissioner.

Part 4 amends the Regulation of Investigatory Powers (Prescription of Offices, etc. and Specification of Public Authorities) (Scotland) Order 2010 (“the 2010 Order”) in relation to both ordinary and long term authorisations of relevant sources. The level for ordinary authorisations of relevant sources is raised to the rank of assistant chief constable or higher in the Police Service of Scotland. The level for long term authorisations is raised to deputy chief constable or chief constable. The ranks for all other types of authorisation by the Police Service remain unchanged.

Part 5 makes unrelated minor amendments to the 2010 Order to alter the office holders in the Common Services Agency for the Scottish Health Service and the Scottish Environment Protection Agency who may grant authorisations under the 2000 Act. Part 5 also corrects a typographical error in Schedule 1 to the 2010 Order.