Investigatory Powers Bill

Lord Carlile of Berriew Excerpts

Monday 27th June 2016 Lords Chamber

[Lord Carlile of Berriew (LD)]

My Lords, it is always a pleasure to follow the noble Baroness, Lady Ramsay, but it is a privilege to follow her on a subject of which she has the theoretical knowledge, and probably more practical knowledge than almost any other Member of this House—certainly more than most who are prepared to admit it. I know that repetition rarely involves improvement to the decent argument so I propose to make a few points of emphasis rather than repeat what has been said. I can say at the outset that I support the Bill, for the reasons just given by the noble Baroness and by noble Lords including the noble Lords, Lord Murphy and Lord Butler of Brockwell, my noble friends Lord Campbell of Pittenweem and Lord Macdonald, the noble Lord, Lord Rooker, and the noble Marquess, Lord Lothian.

I have some misgivings about the Bill. They are three in number and I can state them briefly. The first is the issue of legal professional privilege. I am not going to repeat a word of what was said so eloquently by the noble Lord, Lord Pannick, and my noble friend Lord Lester. I simply invite the Government to continue to consider that issue and to respond consistent with the advice that has been given in the debate.

My second misgiving relates to the use made of certain types of records. We have to be careful to ensure that, for example, medical records are used only for a legitimate purpose. I can see extreme circumstances in which medical records might be relevant to a terrorism event but the use of such records would have to be extremely carefully controlled, so what I would describe as the principle of legitimacy of use is essential to the Bill.

My third misgiving echoes something that was just said by the noble Baroness, Lady Ramsay, alluded to earlier by my noble friend Lord Campbell and stated pithily by my noble friend Lord Macdonald. It is about judges. I have general reservations, as she does, about the role of judges in what is essentially a ministerial act. It is Ministers who are briefed every day on national security issues and who have been issuing warrants though history. It is senior civil servants, such as some of the retired civil servants who have spoken so well in this House—there may be one or two more to come—who have consistently given advice to Ministers. I do not object to judges being involved in some way, but it must be a legitimate way. If judges are to be involved, it is to be for the verification of what has been done and of whether it has been done in accordance with legal principle. That means by the use of the rules of judicial review. Judges are not trained to authorise warrants. Most judges do not want to be trained to authorise warrants, and they should not be thrust into that role. I agree emphatically with my noble friend Lord Macdonald of River Glaven that it is desirable that serving judges should be included as judicial commissioners. It is not that retired judges do not do the job well—they do their work brilliantly in most cases—but the political optics of this issue are very important. The cohort of judges who act as judicial commissioners should include serving judges who go back from their commissioner role to the courtroom in which they give judgments on issues of fact and law so that they are seen to be not in any way the beneficiaries of political largesse.

Earlier, the noble Lord, Lord Blunkett, referred to a telephone call he made to me on 11 September 2001. It was probably a call I should not have returned because it resulted in my becoming Independent Reviewer of Terrorism Legislation. I did the job from 2001 to 2011. Even in 2011, it was nothing like as complex as it is today, and I pay tribute to my successor David Anderson QC for the brilliant work he has done, the outstanding legal analysis he has brought to his role and his sensitivity to the most difficult political setting in which he has had to carry out his role. It was much easier in the period when there was a Labour Government. Not all the Home Secretaries were entirely consistent in their views, but broadly they were, considering how many there were over those years, including one who is in his place on the privy counsellors’ Bench. David Anderson has had a much more difficult task. The House should be extremely grateful to him for what he has done.

I am frankly outraged, and I suspect David Anderson is, too, by the criticism of civil servants in the Home Office by one speaker in this debate. I observed civil servants in the Home Office over nine and a half years carrying out their role without bias, fear or favour, just doing their sometimes very difficult duty. The suggestion that civil servants in the Home Office, or anywhere else in the public service who I have observed at close quarters, have dealt with terrorism issues in a way that is dishonest in any way whatever just fills me with horror, and I hope that Lordships generally will reject that slur on our civil servants. It should not have been made.

Taking a much more constructive point now, I hope, what we have is a changing situation. As I discovered in my nine and a half years as Independent Reviewer of Terrorism Legislation, dealing with terrorism is not science or even art; it is just something that changes day by day. It does not evolve; it simply changes, sometimes suddenly, by mood and disruption in the political and democratic metabolism of the world. Sometimes the changes are unpredicted, and often they are completely unexpected. We should bear that in mind as we look at the detail of the Bill in the weeks to come, and I look forward to playing my part.