Investigatory Powers Bill

Debate between Lord Carlile of Berriew and Lord Tebbit

Wednesday 13th July 2016 Lords Chamber

[Lord Carlile of Berriew]

With great respect to a respected lawyer, that is not correct. If the decision is disproportionate, these days it is subject to judicial review. If the noble Viscount would perhaps take his weekend to read through the AC digest, he would find that in example after example, relating to every department of state. I am therefore content with what is offered by the Government, and so, importantly, is David Anderson, the current Independent Reviewer of Terrorism Legislation. I hope that we will proceed fairly quickly beyond this issue.

[Lord Tebbit (Con)]

My Lords, I will say just a few brief words. I am not a lawyer but I have held executive authority as a Minister over a number of years. I do not think a judicial review ever found against me, but in those years life was very much simpler. There were three classic tests: was my action, or that of any other authority, ultra vires; was it so unreasonable that no reasonable-minded man could have taken it; or was it contrary to law? I knew where I was.

From what I have heard today, that beautiful simplicity has gone. Now I would have to guess at what might be in the minds of the lawyers who would review my decision and conclude that theirs would have been rather better. But then the lawyers would back away. They do not have to take responsibility for their decision; that is left to the Executive and it is not quite fair. Why should the Executive be landed with the statement, “You were wrong—get on with it”, when, by all normal standards of common sense, their decision was perfectly reasonable? We are more and more getting into the territory where judges take decisions that should be taken by Executives and I do not like that.