Investigatory Powers Bill

Lord Rooker Excerpts

Wednesday 13th July 2016 Lords Chamber

[Lord Rooker (Lab)]

My Lords, listening to the debate as a non-lawyer, I get the impression it is being argued that the legal contribution is supposed to be equal to the ministerial contribution. I reject that utterly. It is the Minister’s job to take the decision. That is where the accountability is at the end of the day—back to Parliament. They are not equal partners in this. The introduction of a judicial role to provide oversight or to ask, “Did you really mean that?” or, “Are you sure you’ve got this quite right?” is not the same as giving equal partnership in the making of decisions; that is not what is intended. Yet the whole thrust of what I have been listening to today is about making them equal. I hope the Government will firmly reject that.

[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.

--- Later in debate ---

Amendments 50 to 52, 170 to 172, 199, 200, 209, 210, 215 to 217 and 229 to 231 reflect equivalent amendments that we have already discussed in relation to Part 2. They respond to concerns voiced by the Intelligence and Security Committee that the Bill should prohibit a targeted interception warrant being renewed very early in its period of validity. The amendments make it clear that a warrant cannot be renewed more than 30 days before it is due to expire. While we do not foresee any circumstance where a very early renewal application such as that feared by the ISC would be approved by the Secretary of State or judicial commissioner, there is no harm in ensuring on the face of the Bill that such an eventuality cannot take place.

[Lord Rooker]

Can I ask the Minister a question before he finishes? I did not want to interrupt what he was saying about the government amendments, but in reading Amendment 226, do I take it that the judicial commissioner gets involved only after the Prime Minister has given approval? It is not clear, but I am just assuming that has to be the case, so that the Prime Minister has also had oversight of the decision, rather than the Prime Minister coming in after the judicial commissioner has agreed, say, the Home Secretary’s decision.

[Lord Keen of Elie]

The noble Lord is, I believe, entirely correct. The sequence will be that the Secretary of State will approve the warrant, the matter will be brought to the attention of the Prime Minister, who will then address it, and only after that will it go to the judicial commissioner, who will then apply his review process to the determination that has been made.