Data Retention and Investigatory Powers Bill

Debate between Lord Carlile of Berriew and Lord Howard of Lympne

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.

Financial Services Bill

Debate between Lord Carlile of Berriew and Lord Howard of Lympne

Tuesday 3rd July 2012 Lords Chamber

[Lord Howard of Lympne]

Could not the investigation that my noble friend asks for be carried out without the appointment of a special prosecutor but by the Serious Fraud Office, which has already embarked on such an investigation, with the director, if necessary, asking for additional resources to enable him to bring such an investigation to a speedy conclusion?

[Lord Carlile of Berriew]

I am grateful to my noble friend, who has considerable experience of dealing with high-level legal matters. I believe that might be achieved, but in my view there needs to be the clearest statement of intent by the Government. My intention, as my noble friend implies, is that whoever carries out this special investigation should be invested with the powers of the Serious Fraud Office, which are considerable and important. That is why I suggested earlier that this should take place under the instructions of the director of the Serious Fraud Office, Mr David Green QC. However, I believe that the Serious Fraud Office is completely unresourced for this kind of investigation. I also believe that in public terms, if the Government made it clear that they would provide Mr Green with the resources immediately to appoint a special prosecutor, albeit under his umbrella, and that person was provided with a team, probably largely from outside the SFO, which has been recruiting a large number of staff recently and may not have the experience to deal with this inquiry at present, then we would have a quicker and better result.

I do not want to detain your Lordships’ House for too long. However, I want to make the point that we have not yet reached the situation in which the essential issue is being investigated properly—that is, the potential criminality of those whom we were entitled to trust.

Terrorism Prevention and Investigation Measures Bill

Debate between Lord Carlile of Berriew and Lord Howard of Lympne

Wednesday 5th October 2011 Lords Chamber

[Lord Carlile of Berriew]

In answering the question asked by the noble and learned Lord, Lord Lloyd, perhaps my noble friend would be mindful of the power in the United States to impose executive witness detention, never mind executive suspect detention. He might also be mindful of the arbitrary powers used in a number of other countries, for example, Pakistan and Sri Lanka, to detain people without any proper legal process and of the power, for example, in France, to charge people with association de malfaiteurs, something we are probably all doing in this House this afternoon, and then hold them in custody for months and months, quietly releasing them without charge.

[Lord Howard of Lympne]

I hope that my noble friend in that intervention has not exhausted the number of examples of that kind that I am sure he is able to give to illuminate the House. The truth is, I suspect, that if one conducted an extensive examination of the way in which other countries have faced up to this dilemma, one would find that the measures contained in the Bill are less draconian than those that exist virtually anywhere else in the world.

As I said, I believe that the Government have struck the right balance, with one not insignificant exception. When I gave evidence to the Public Bill Committee, I said that in my personal view the Bill would be better if it contained the relocation provisions, and I do not resile from that view. I believe that the relocation provisions would make it easier for the Security Service to carry out its responsibilities and would enhance the protection of the public. On that single point, I agree with the noble Lord, Lord Hunt, but for the rest of it, I believe that the Government have struck the right balance and that the Bill should be supported.

Police Reform and Social Responsibility Bill

Debate between Lord Carlile of Berriew and Lord Howard of Lympne

Wednesday 18th May 2011 Lords Chamber

[Lord Howard of Lympne]

My Lords, I rise only because my name was prayed in aid by the noble Lord, Lord Soley. I do not believe for a moment that these amendments are necessary to prevent the commissioner taking control of the police because the Bill in its original form makes it absolutely clear that the operational independence of the police is protected. Therefore, the point made by the noble Lord, Lord Soley, is completely wide of the mark.

However, I was intrigued—since I am on my feet I shall make a further point—by the intervention of the noble Lord, Lord Carlile, and his attempt to draw parallels between the discussions that took place in this House yesterday and the discussions that we are having today. I had assumed that the whole thrust of the proposals which were put forward yesterday emanated from the devotion of the Liberal Democrat Party in particular to the principle of democratic elections. I thought that that was at the heart of the proposals which were put before this House yesterday. However, the fact that a significant number of Liberal Democrats were not prepared to accept the principle of democratic election in respect of police commissioners has resulted in the difficulties which have also been discussed today. That is the most significant and odd lesson to be drawn from the contrast between our discussions yesterday and our discussions today.

[Lord Carlile of Berriew]

I do not want to turn this into a little contest between lawyers but I do not know from where my noble friend derives the assertion that I am in some way opposed to democratic elections. As a lawyer like him, I am in favour of tidy and comprehensible solutions—that is my concern about yesterday—but perhaps we should move on to today.

[Lord Howard of Lympne]

It was the noble Lord who brought yesterday into the discussion in the first place. I did not introduce the subject of yesterday, he did. I just thought that I would point out the beginning of a discrepancy between the approach of the Liberal Democrats to what we were discussing yesterday and the approach of at least some of them to what we are discussing today.