Investigatory Powers Bill

Debate between Lord Carlile of Berriew and Lord Brown of Eaton-under-Heywood

Wednesday 13th July 2016 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I confess to taking a rather different view of this. This is a question of judicial oversight; it is not in principle judicial initial decision-making. I am perhaps a little out of date, although I have been at pains to keep up to date with developments, and as the noble Baroness and the noble Viscount have already recognised, there have been significant developments. This is not just about process; it is not what used to be called Wednesbury review, or perversity or irrationality. Nowadays it has developed into an appropriately flexible standard of oversight. Even without the explicit requirements to look at the necessity, the proportionality and the requirements of the human right to privacy, as there are here, there is in the modern concept of judicial review an ample opportunity.

In recent cases—I am looking at the Judicial Review publication of March of this year, so it is fairly up to date—the noble and learned Lord, Lord Mance, in one of these recent cases such as Kennedy, Pham, and so forth, said that it was,

“improbable that the nature, strictness or outcome of such a review would differ according to whether it was conducted under domestic principles or”,

the EU law principle of proportionality. Therefore, even without the explicit requirement to look at proportionality, as there is in respect of all these oversight obligations, there is here an appropriate degree of flexibility.

You want an element of flexibility—you want the judge plainly to be able to take account of the nature of the underlying decision he is reviewing and of the extent to which there has been an invasion of privacy, against which this judicial oversight is designed to protect the citizen. This matter has been thrashed out; if you read the two days of debate in the other place, you see that there was some appropriate degree of give. However, I respectfully suggest that the oversight as now provided for is, if not more than adequate, certainly adequate.

[Lord Carlile of Berriew (LD)]

My Lords, we first have to decide what we want. Do we want judicial decision-making on these warrants and similar provisions, or the judges to review the legality of ministerial decisions? In my view, as a matter of constitutional principle, we do not want the judges to make the primary decisions but to review the legality of those decisions. I agree entirely with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, in this regard.

For the nerds among us, there is a regular publication called the Administrative Court Digest—the AC digest—which I read with enthusiasm every time I receive it. It is extremely interesting, because it demonstrates that judicial review is not some kind of dry, legalistic test of precise processes followed by government and government officials but a wide-ranging test of legality. If the factual decisions that have been reached are so wrong that they should properly be regarded as unlawful, they are judicially reviewed as unlawful.