Data Retention and Investigatory Powers Bill

Lord Carlile of Berriew Excerpts

Thursday 17th July 2014 Lords Chamber

[Lord Howard of Lympne (Con)]

My Lords, I rise with some temerity to disagree with the views expressed from the Benches opposite, but it seems to me, as a matter of principle, that when the Government and the Parliament of the United Kingdom consider how to introduce legislation consistent with a decision of the European Court of Justice, it is the substance of what the Government and the Parliament of the United Kingdom are providing which is important. It should not be necessary, and it would not be a healthy precedent, if Parliament took the view that every time we had to amend our legislation in order to comply with a judgment of the European Court of Justice, it was incumbent upon us to adopt language identical to that found in the judgment. So there is at least the vestige of a point of principle here, and that point of principle leads me to support the view expressed by the Minister.

[Lord Carlile of Berriew (LD)]

My Lords, I support what has just been said by my noble friend Lord Howard of Lympne. I speak not as a judge but as someone who has drafted many skeleton arguments to take before senior courts, and given a phrase such as “strictly necessary”, I would spend my time in preparing a case by looking for authorities decided by the courts in which there was a difference between the terms “necessary” and “strictly necessary”. I have spent some time doing so this morning, and I have failed to find such a case so far—although of course I will defer to the noble and learned Lord, Lord Hope, if he can find one for me. Judges are often so much better informed than those who appear before them, and I feel a little as if I am in that situation now.

However, speaking for those of us who are paid, sometimes a great deal of money, to create a difference where none exists between a phrase such as “strictly necessary” and the mere word “necessary”, I would say to the Minister: please avoid tautology. It is expensive, and not terribly helpful.

[Lord West of Spithead]

My Lords, the point made by the noble Lord, Lord Howard, is important, and I accept it. There is a danger of raising a precedent here. On a point of clarity for a simple sailor, may I ask: if an amendment is taken today, is there a mechanism within this urgent high-speed way in which we are doing things to get the change back to the Commons to get it sorted out, or are we talking in a vacuum, because nothing has been organised to achieve that?

--- Later in debate ---

[Lord Carlile of Berriew]

My Lords, I join those who urge my noble friend not to be attracted by the arguments presented this afternoon for reducing the time available for the full consideration of these matters. I also join those who thank him for the assistance we have been given in the letter that was sent this morning to some, and possibly all, of us who are present. I also thank his officials who put up with some pestering telephone calls this morning, certainly from me.

I remind your Lordships that the sunset provision does not provide for revival of this legislation by statutory instrument. The sunset provision ensures that the legislation falls completely on 31 December 2016. We therefore have to allow due and proper time for consideration of these matters.

I join the noble Lord, Lord Rooker, in what he said. I am sure that the House was very pleased to hear that he is a member of the RUSI panel that has been put together with some difficulty and over considerable time at the behest of the Deputy Prime Minister. As I understand it, the panel will consider a substantial amount of evidence, not just from within the United Kingdom. It will be making comparisons with other jurisdictions, and the range of talents on the panel goes right across the disciplines that deal with this issue. We have to allow time for the RUSI panel to do its work.

A number of other reviews are also taking place. Shortening the timescale for the new legislation would undermine the extremely important review of RIPA, which will be a thorough and systematic review of the Act. Let us not forget that completely new legislation has to be in place before the end of 2016. We know in this House that, very properly, that legislation will be the subject of detailed debate. We know that some of my noble friends—I am looking at my noble friend Lord Strasburger who quite properly will be one of those—will put down amendments that will challenge some of the thinking behind the legislation that will be presented. That legislation will take some months to go through this House and we must be ready for it with reviews that have really looked at every issue.

Perhaps I can be forgiven for using a couple of words of Latin, which would probably be deprecated by the noble and learned Lord, Lord Hope, if he were sitting in court. I am pleased to see that he is shaking his head. Perhaps this is the time when we should—

[Lord Hope of Craighead]

I come from Scotland where Latin is still spoken by lawyers. We did not adopt the approach of the noble and learned Lord, Lord Woolf. I am very happy to listen to Latin words—and perhaps I will understand them as well.

[Lord Carlile of Berriew]

Not so long ago, I went to Cranston’s tea rooms in Glasgow and tried to order some lunch. Plainly it was because Latin was being spoken that I had such difficulty. What I was going to say, using two words of Latin, was that perhaps this is a time when we should festina lente.