Former justice chief states successors should receive intercept power
FORMER Justice Secretary Kenny MacAskill has called for his successors to be given control over the bugging of suspected terrorists.
The veteran Nationalist believes Scottish ministers rather than the Home Secretary should be responsible for authorising intercepts north of the Border.
His views come amid what The Herald understands is considerable jurisdictional confusion over the issue as the line between terror and organised crime suspects is increasingly blurred.
The Scottish Justice Secretary – currently Michael Matheson – must personally approve all intercepts from Police Scotland. But, in some recent cases, even investigators have been unsure whether suspects are pr imar ily t er ror i sts or gangsters.
Mr MacAskill, writing in The Herald, said this confusion was “potentially dangerous”, with Scottish author ities unsighted on terror cases.
He wrote: “Serious organised crime and terrorism are often linked. Northern Irishlinked paramilitary gangs may masquerade as political in their ideology but are criminal in their actions.
“Is an intercept on any of those organisations, whether Northern Irish or international, terrorism or criminal? Does it go to the Home Secretary or the Scottish Justice Secretary?
“This is not a turf war but a matter of public safety.
“All intercepts in Scotland whether relating to criminality or terrorism should be authorised by Scottish ministers, with UK authori- ties correctly being kept informed.”
Mr MacAskill’s views come after MI5 and Police S c ot l a nd successfully disrupted a gang of would-be dissident Irish Republicans led by Antoin Duffy. The group, convicted last month, was heavily involved in Scottish organised crime.
The Home Office, however, does not appear ready to relinquish control over making authorisations.
A spokesman said: “Scottish ministers have the power to authorise interception of communications to prevent or detect serious crime.
“However, matters of national security, including countering terrorism, are reserved and, as a result, the Home Secretary authorises interception in such cases.”
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THERE has been a great deal of controversy concerning allegations that the police may have intercepted journalists’ communications. That concern is understandable. Privacy is a citizen’s right that should be cherished unless significantly good reason exists to do otherwise; protection of a free press is particularly so in a democracy.
But public safety and modern society mean that the limited use of intercepts is required. Police Scotland has understandably declined to comment on specific cases. To do so would ultimately lead to identification of individuals. That could compromise criminal investigations and jeopardise the interests of those concerned.The authority to carry out intercepts in relation to criminal investigations is the responsibility of Scottish ministers and almost invariably the Justice Secretary. In seven-and-a-half years in that role I found the number to be very limited. It’s not simply the civil liberties implications but the resource intensity that makes their use necessarily sparing.
I found their use proportionate and reasonable in the circumstances. They were usually in relation to serious criminality relating to drugs and firearms, though other serious crimes were also occasionally the subject of investigation. The threat to life or public wellbeing was substantial and intrusion in the private affairs merited for community safety. Press and politicians rightly cherish their sources and privacy. I can safely say that none was ever sought from me against journalists or politicians.
The use of intercepts is monitored by the Interception of Communications Commissioner, invariably a barrister of considerable knowledge and presence. I found the commissioner to be rigorous and demanding; not simply of police in their actions but also of my officials and me in our scrutiny. That is only right and proper. The public would expect no less. However, both the commissioner and I were satisfied that their use was balanced and proportionate, and the monitoring and review challenging.
There is, though, an issue with intercepts that does require considered and that is those in relation to terrorism. I cannot comment on any intercepts that may have been granted in respect of that as I was precluded from them, though I was Justice Secretary. Terrorism is a reserved area and these are authorised by the UK Home Secretary. The Scottish Justice Secretary need not even be given sight of a potential threat.
In practice, Police Scotland will usually advise on an informal basis but the official authorisation is restricted to the Home Secretary. That same courtesy need not apply either to the UK National Crime Agency or the security services. That situation is not only ridiculous but also potentially dangerous.
The nexus between serious organised crime and terrorism is significant. The two are often inexorably linked. That is shown in international drug dealing as well as other areas of serious criminality. In Scotland major issues still arise in relation to Northern Irish-linked paramilitary gangs. They may masquerade as political in their ideology but they are criminal in their actions. Is an intercept on any of those organisations, whether Northern Irish or international, terrorism or criminal? Does it go to the Home Secretary or the Scottish Justice Secretary?
This is not a political turf war but a matter of public safety. In the event of any major terrorist activity or incident, it will undoubtedly involve the police and ultimately both the Justice Secretary and the wider Scottish Government. Given the threat to civil society and the implications not just for law enforcement but also for health, transport and the economy, the Scottish Government needs to be given sight of potential threats and be involved in addressing them. Police Scotland will have to be involved and any prosecution will be brought by the Lord Advocate.
The monitoring of terrorism abroad is for the security services and should continue to be dealt with by the Home Secretary and GCHQ. That is not an issue. With the SNP now the third party in Westminster it will be interesting to see if they are allocated a seat on the Security and Intelligence Committee. If they aren’t what does it say about respect for Scottish politicians? If they are, how can the Scottish Justice Secretary not be trusted on intercepts on terrorism if a Westminster colleague has oversight both at home and abroad?
All intercepts in Scotland whether relating to criminality or terrorism should be authorised by Scottish ministers, with the UK authorities correctly being kept informed. Kenny MacAskill is a former Justice Secretary in the Scottish Government