Investigatory Powers Bill

Lord Phillips of Worth Matravers Excerpts

Wednesday 13th July 2016 Lords Chamber

[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.

[Lord Phillips of Worth Matravers (CB)]

My Lords, that is precisely what this amendment is seeking to do.

[Lord Strasburger (LD)]

My Lords, I rise to speak to Amendment 41, which seeks to remove the requirement for a judicial commissioner to apply judicial review principles when approving warrants. I do so with some trepidation as I am only the second noble Lord who is not a lawyer to venture into this very dangerous territory, but I will have a go. We heard a lot about this subject on the Joint Committee on the Bill and a large amount of both written and oral evidence was presented to us. I have reviewed it all again in preparation for today and would like to make the following points.

Surely applying any rules at all to how a person is to make a decision must have the effect of constraining how that person makes their decision. As such, constraining the judicial commissioner to judicial review rules must reduce their contribution to the decision compared to that of the Secretary of State, who has no such rules or constraints to limit how she makes her decision. If we retain the judicial review principle for the judicial commissioner, we no longer have a true double lock; we have a 1.5, or 1.4 lock, or whatever. If we want a true double lock—the phrase the Government keep using—whereby both the Secretary of State and the judicial commissioner consider the application in identical ways, as we on these Benches believe is the ideal, then we cannot constrain one of the decision-makers to special rules, whether those of judicial review or otherwise.

Several witnesses to the Joint Committee pointed out a major flaw in the case for judicial review rules to apply. Normally during a judicial review, both parties are present and have the opportunity to make their case for and against the decision being sought. In the case of a warrant application, only one party is present and the judicial commissioner has to imagine what objections the person who is the subject of the warrant might offer, so it is not possible to truly apply judicial review rules. In his oral evidence on this aspect, Matthew Ryder QC said that,

“normally in judicial review, there is an element of an adversarial process. In other words, the judge is assessing it with somebody making representations in relation to the other side. There will be no adversarial process built into this, the way it stands at the moment. You will have a judicial review, but no one putting forward the argument to the judge in a different situation. Now, that is not unheard of; you have that in other situations, but not in … a judicial review situation”.

So far, no proponent of judicial review rules has explained why the judicial commissioner should be limited in his or her consideration of the warrant application, so perhaps one or more noble Lords will do so during this debate. The Home Secretary suggested in her oral evidence, somewhat counterintuitively, that being constrained would give the judicial commissioner more flexibility, when the opposite would seem to be the case. I will listen with interest to the debate on this amendment. In the meantime, I commend it to the House.

--- Later in debate ---

The fact is that this might be very unusual, and not many people would think it wise to burn down a house for the purpose of roasting a pig—unless they wanted the house to come down anyway. But although it happens seldom it could be a vital factor in preventing a huge disaster. I hope that the Government, with all the resources of their learned parliamentary counsel, will draft a provision which incorporates the iniquity situation as well as that of the non-iniquity of a lawyer who is unwittingly used to further some aspect of what the person consulting him wants, as in the example given. It will also be important where, for example, the location from which the conversation is taking place is vital to instant action on the part of the security services to avert disaster.

[Lord Phillips of Worth Matravers]

My Lords, the example given by the noble and learned Lord, Lord Mackay, demonstrates why Amendment 48 is too narrow. If a villain were to seek advice on his will it would not be a criminal purpose but it might none the less be justifiable to listen to the conversation in the hope of finding out where he was.

[Baroness Hamwee]

My Lords, from our Front Bench I support these amendments, although I take the point about the innocent conduit—if I can put it that way—which becomes more intriguing as one thinks about it. The noble and learned Lord, Lord Mackay of Clashfern, said that if the security services could use another means they would do so. I want to bring into the mix a point that I made when we debated Clause 2, which is that that requirement is not absolute: they would have to have regard to other means and whether those could reasonably achieve the end. This exercised me in a conversation with the Minister and continues to do so, so it is right to bring it into the mix.