Investigatory Powers Bill

Lord Campbell of Pittenweem Excerpts

Monday 27th June 2016 Lords Chamber

[Lord Campbell of Pittenweem (LD)]

My Lords, one of the most well-worm clichés in politics is that the devil is in the detail. On this occasion, I venture to suggest that it is more than apposite, because I cannot remember legislation in my time either in the other place or here which contained so many detailed provisions. I have the misfortune to disagree with several of my noble friends on these details, but I happen to believe that the fundamental principles which underlie the Bill—of necessity, proportionality and legality—are ones that the whole House would readily accept.

I was struck by a statement made by the Home Secretary at Third Reading in the other place. She said—and I paraphrase slightly—that the duty of government is to protect its citizens and the duty of Parliament is to hold the Government to account for the way in which they exercise that protection. These cannot be absolute values; they are essentially relative. The extent to which one may be emphasised at the expense of the other will always be a decision of fine judgment. It will always be a decision which has to be taken in prevailing circumstances. The kind of legislation introduced in the United Kingdom Parliament in either the First or the Second World War reflected what was thought to be of particular urgency, but we must be clear that what may be proportionate or necessary at one time may not be proportionate or necessary at another.

It is well accepted that the Bill must provide a proper framework with which the judgments to which I have referred can be made, but I thought that the noble Lord, Lord King, who is no longer in his place, made a very sound point about the pace of change. One difficulty about the pace of change is that it is not constant but is always accelerating. When we consider that the iPhone, or rather—I had better be careful that I do not advertise—the mobile phone that we all carry in our pockets now contains a capacity far beyond that of the computers that used to occupy a whole room in the 1960s, it illustrates just how much capability has improved and been changed, and the extent therefore to which legislation has, so far as possible, to keep pace with it.

I am persuaded that this Bill generally provides a proper framework—but, as we have already heard, more amendments have to be made. In the other place, the willingness of both sides of the House to enter into dialogue and discussion helped to produce a Bill which is perhaps not as divisive as it might have been, but has none the less left for your Lordships a variety of issues of importance which will be aired for the first time only during consideration in Committee.

On the double lock, it is still argued by some that approval should be by judge alone. With that conclusion, I respectfully disagree. Parallels with other jurisdictions are dangerous. Sometimes reference is made to what happens in the United States, but it is important to remember that judges in the United States are elected or appointed not just because of their legal ability but because of their political affiliation. That is true in the Supreme Court—hence the controversy which surrounds the choice that Barack Obama may have about the appointment to a vacancy on the Supreme Court Bench.

I am thoroughly convinced that judicial review, or the application of its principles, is more than appropriate. Judicial review is a well-established process both in the common law and in the law of Scotland. Judges are well used to applying its principles and the law, as the Advocate-General will certainly be aware, has developed considerably since the case which gave rise to the Wednesbury principle was decided many generations ago.

My belief that the initiation of approval should rest with the Home Secretary seems entirely justified because there will be occasions when the mere granting of a warrant will have political implications. That may be so particularly if there is any question of activity authorised by a warrant taking place abroad. In those situations, the decision being of a political nature, I feel that no judge would be enthusiastic about the proposition that they and they alone should have responsibility for these matters—it would be entirely inimical to the approach that judges take in our system.

I understand the motive behind the amendment made in the other place which provides that the judicial commissioner has to take particular care to apply the general provisions on privacy which are now a centrepiece of the Bill. I suspect that that is an unnecessary belt when there were already adequate braces, because I cannot imagine any judicial commissioner worth his or her salt who would not, in interpreting a particular section of the Act, take account of all the rest of the terms of the Act—indeed, it is a fundamental principle of statutory interpretation.

As I have said already, the Government have shown remarkable willingness to accept and adopt proposals for amendments, particularly in relation to the activities of journalists and the relationship between lawyers and their clients.

I will finish by saying a word about bulk powers, which have been and remain controversial. I began by thinking that the jury was out, but it would be more correct to say that the independent reviewer, David Anderson, is out and we will have to wait for his report—but I think that there is confidence on all sides of the House in his ability to bring proper forensic application to these issues and to provide a report which will be of great assistance.

The powers that we are talking about already exist; they are not new powers. David Anderson’s review will provide a safeguard as to whether it is appropriate to continue with them, but, rather as the chairman of the ISC, Dominic Grieve, said in the other place, there is strong and general acceptance that the powers are necessary and proportionate. Without straining the metaphor too much, people say that it is like looking for a needle in a haystack, but you must first have access to the haystack before you have any opportunity of looking for the needle. I commend the Bill.