Investigatory Powers Bill

Debate between Lord Murphy of Torfaen and Lord Lester of Herne Hill

Wednesday 13th July 2016 Lords Chamber

[Lord Lester of Herne Hill (LD)]

My Lords, I had not intended to speak until I had listened to the debate, especially what was said by the noble Lord, Lord Tebbit. During the 50-odd years that I have been at the Bar, one the great developments has been that of public law. When I began at the Bar, there was virtually no judicial interference in or control of ministerial decisions. One of the great developments brought about by judges and judges alone has been the notion that, although Ministers take decisions, they must do so in accordance with the rule of law. Judges are extremely careful to make sure that they do not decide the merits of cases that should be decided by Ministers, but they also say that, although Ministers take decisions, they must do so in accordance with the principles of legal certainty, reasonableness and proportionality. Over the years, a partnership has developed between the judicial branch of government and Ministers and Parliament. I agree with my noble friend Lord Carlile that the principles of judicial review are sufficiently flexible and practical to provide adequate safeguards against abuse. I do not believe that judges in any way usurp the functions of the Executive, nor do I believe that they should. I know of no case in which our judges have done so. For those reasons, I hope I have reassured at least the noble Lord, Lord Tebbit, that there is no undue usurpation of the role of Governments or Ministers, nor is any intended.

[Lord Murphy of Torfaen (Lab)]

The whole purpose of this legislation, whether we agree with it or not, is that there should be a double lock. When I was signing warrants for intercept, it was left to me entirely as Secretary of State. There was no involvement of the judiciary or anybody else, other than the security services providing you with a great deal of information on why you should take a particular decision. The principle behind the Bill is that a judge should look at and review the decision of the Secretary of State. The argument both in the Joint Committee and in the other place has been about whether the judge should take into account necessity and proportionality—which would have been taken into account by the Secretary of State in taking the decision in the first place—in the same way as the Secretary of State, or whether they should look at it simply through the eyes of a judge.

One of the most interesting sessions of the Joint Committee was in the Committee Room upstairs where we interviewed a judge from New Zealand—it was 5.10 am when the judge very happily came to address the committee. That is obviously a very different sort of country. With a couple of million people, they obviously do not have the same number of warrants to deal with as we do in this country. It seemed, however, from what the New Zealand judge was saying, that there was a happy relationship between him and the appropriate government Minister in New Zealand, in that when they looked at a warrant, they did so with the same eyes.

The noble Lord, Lord Carlile, is saying that if you take into account modern judicial review principles, you also take into account proportionality and necessity. But that has to be made clear. I understand that the Government made some changes in the other place with regard to this matter, but the precise role of the judge needs to be made clear. Does he or she look at a warrant simply as a judge or as a human being, and is it in the same way as the Secretary of State does?