rose to move, That the Grand Committee do report to the House that it has considered the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2007.

The noble Lord said: This order is made under Sections 30(3) and 63 of the Scotland Act. It was laid before both the UK and Scottish Parliaments on 20 June. Section 63 of the Scotland Act allows for the transfer to Scottish Executive Ministers of functions that are exercisable in or as regards Scotland. This is commonly known as executive devolution.

Since 1999, 14 orders have been made under Section 63 of the Scotland Act. These orders demonstrate the Government’s pragmatic approach to the devolution settlement and the flexibility contained in the Scotland Act. In certain circumstances, there will be a case for functions to be exercised by the Scottish Executive Ministers where the subject matter remains the responsibility of this Parliament. Each case is examined on its merits to ensure that functions are exercised at the appropriate level.

In 2000, this Parliament passed the Regulation of Investigatory Powers Act, otherwise known as RIPA, which governs the use of surveillance and information-gathering to help prevent crime. The 2000 Act sets out a series of safeguards and procedures for the use of covert surveillance and the interception of communications. While the interception of communications remains a reserved matter, in Scotland the issuing of warrants to authorise the interception of communications under RIPA was devolved to the Scottish Executive Ministers in 2000. These functions were transferred to the Scottish Executive Ministers by way of an order made under Section 63 of the Scotland Act.

A further order was made in 2003, which executively devolved the power to issue warrants in accordance with international mutual assistance agreements under the 2000 Act. Under RIPA, warrants may be issued to enable UK law enforcement agencies to seek assistance from other agencies in Europe with the interception of telecommunications outside the UK.

Since the order was made in 2003—this is the point of the order—two new agencies have become operational: the Scottish Crime and Drug Enforcement Agency and the Serious Organised Crime Agency. The order before us will allow the Scottish Executive Ministers to issue warrants to the new agencies in accordance with international mutual assistance agreements under the 2000 Act.

The effect of the order will be that the Scottish Crime and Drug Enforcement Agency and the Serious Organised Crime Agency will be able to apply directly to the Scottish Executive Ministers for interception warrants, just as other law enforcement agencies in Scotland can.

On a technical note, to facilitate the transfer of functions under Section 63 of the Scotland Act, it is necessary to specify which functions of the 2000 Act are exercisable in or as regards Scotland. Section 30(3) of the Scotland Act provides that Her Majesty may by Order in Council specify which functions are to be treated as exercisable in or as regards Scotland. The order will specify the aforementioned functions as being exercisable in or as regards Scotland so that they may be transferred to the Scottish Executive Ministers.

We believe that the order is a sensible use of the powers in the Scotland Act and the result is about the practical allocation of executive functions across the United Kingdom. I beg to move.

Moved, That the Committee do report that it has considered the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2007. 21st report from the Statutory Instruments Committee.—(Lord Evans of Temple Guiting.)

The Explanatory Notes refer to functions transferred to Scottish Ministers,

“for the purpose of preventing or detecting serious crime or, in circumstances equivalent to that, for the purpose of giving effect to the provisions of any international mutual assistance agreement”.

Nobody could disagree with that. However, will the Minister state categorically that this is not just a clarification but an absolutely necessary measure to make it clear what the Scottish Executive can and cannot do?

Some years ago I was a Minister and had to answer a debate on telephone tapping, with the late Robin Cook. We took our duties very seriously to make absolutely certain that correct procedures should be followed.

I note that the Home Secretary is entitled to set strategic priorities for the Serious Organised Crime Agency. Obviously, operational matters and strategic priorities have a relationship with each other. In dealing with the Scottish Executive on these matters, there should be clarity and goodwill as well as good working relations, with the stress on best practice. Everybody has a common interest in crime prevention. We hope that a meeting of minds will be possible between Her Majesty's Government and the Scottish Executive in the public interest.

I am most grateful to the Minister for explaining the elements that have gone into the drafting of this measure. At first sight, one wondered why it was necessary for the Government to introduce it. The Serious and Organised Crime Agency is a UK body concerned with the security of the whole of the United Kingdom. We are told that this measure is directed at any international mutual assistance agreement.

Paragraph (7)(2)(b) of Schedule 5 to the Scotland Act makes it perfectly possible for a Scottish Minister to assist the UK Secretary of State in carrying out his duties. However, from what the Minister was saying, I think that the initiative for this activity will come from SOCA itself, and it will not be up to Scottish Ministers to take any primary initiative in the matter. I was concerned, if the primary initiative passed to Scottish Ministers, how the co-ordination would be carried out with the various UK bodies that operate in this field.

I have one question for the Minister. I am sure that there is a very simple answer but I should like to be clear about it. In Schedule 2 to the order, the restrictions on the enactment of Section 5 apply only for the purposes of,

“preventing or detecting serious crime”,

and,

“in circumstances appearing to the Scottish Ministers to be equivalent to those”,

which would apply in other circumstances. If it has to appear right for Scottish Ministers, should it not also appear right for the relevant Minister with responsibility for crime? Surely the appearance must be thus on both sides of the fence. I hope that that question is clear.

Perhaps I may take a few moments to answer the question of the noble Lord, Lord Selkirk of Douglas, which was important. To reiterate, there are two reasons why this order is necessary: to include those two agencies. There is no hidden agenda or flexibility to include any other function.

The question is: what will Scottish Ministers be able to do or how will orders be issued? The order transfers functions under Section 5(1)(b) and (d) of the Regulation of Investigatory Powers Act 2000 to Scottish Ministers in respect of serious crime in Scotland. The functions relating to the issuing of warrants in Scotland are transferred to the Serious Organised Crime Agency and the Scottish Crime and Drug Enforcement Agency to authorise the making of requests for the interception of communications under international mutual assistance agreements and the disclosure of those intercepted communications. The purpose of the order is to allow the two organisations to apply to Scottish Ministers for warrants under Section 5(1) in the same way as other law enforcement agencies in Scotland can already do and to disclose the associated material under Section 5(1)(d). Certain related functions under Sections 9(1)(b), 9(3), 10(1)(a) and 10(2) of the 2000 Act are also transferred by this order so as to allow Scottish Ministers to renew, cancel or modify warrants issued to the directors-general of the two organisations. In addition, functions under Section 15(1) of the 2000 Act are transferred so as to allow Scottish Ministers to ensure that certain safeguards are in place in relation to the disclosure of intercepted material.

We believe that the order is consistent with two previous orders made in 2000 and 2003 transferring functions related to the interception of communications to Scottish Ministers. I hope that the noble Lord finds that answer reassuring. If he wishes to have further information, I am sure that my colleagues in the Scotland Office will provide it.

The noble Duke, the Duke of Montrose, asked whether a UK Minister can issue Section 5 warrants in Scotland anymore. The Secretary of State will issue interception warrants in respect of serious crime south of the border and national security for the whole of the UK, and Scottish Ministers will authorise interception warrants in respect of serious crime in Scotland and in order to request interception assistance from the EU MLAC. The noble Duke also asked about cross-border operations. English and Welsh officers do not have powers to conduct directed surveillance in Scotland under RIPA. Why not? It is correct that Part 2 of RIPA extends to Scotland only in limited specified circumstances; for example, UK-wide organisations such as the two we are talking about may operate in Scotland under RIPA. Otherwise, lawful surveillance in Scotland must be authorised under Scottish legislation. However, it is recognised that the current arrangements may hamper some cross-border operations, and the Scotland Office is working with the Home Office to rectify this.

The noble Baroness, Lady Carnegy of Lour, asked about the schedule to the order. We will write to her with a full explanation of it and pass a copy to everyone else who has taken part in the debate.

On Question, Motion agreed to.