Investigatory Powers Bill

Lord Murphy of Torfaen Excerpts

Wednesday 13th July 2016 Lords Chamber

[Lord Lester of Herne Hill (LD)]

My Lords, I had not intended to speak until I had listened to the debate, especially what was said by the noble Lord, Lord Tebbit. During the 50-odd years that I have been at the Bar, one the great developments has been that of public law. When I began at the Bar, there was virtually no judicial interference in or control of ministerial decisions. One of the great developments brought about by judges and judges alone has been the notion that, although Ministers take decisions, they must do so in accordance with the rule of law. Judges are extremely careful to make sure that they do not decide the merits of cases that should be decided by Ministers, but they also say that, although Ministers take decisions, they must do so in accordance with the principles of legal certainty, reasonableness and proportionality. Over the years, a partnership has developed between the judicial branch of government and Ministers and Parliament. I agree with my noble friend Lord Carlile that the principles of judicial review are sufficiently flexible and practical to provide adequate safeguards against abuse. I do not believe that judges in any way usurp the functions of the Executive, nor do I believe that they should. I know of no case in which our judges have done so. For those reasons, I hope I have reassured at least the noble Lord, Lord Tebbit, that there is no undue usurpation of the role of Governments or Ministers, nor is any intended.

[Lord Murphy of Torfaen (Lab)]

The whole purpose of this legislation, whether we agree with it or not, is that there should be a double lock. When I was signing warrants for intercept, it was left to me entirely as Secretary of State. There was no involvement of the judiciary or anybody else, other than the security services providing you with a great deal of information on why you should take a particular decision. The principle behind the Bill is that a judge should look at and review the decision of the Secretary of State. The argument both in the Joint Committee and in the other place has been about whether the judge should take into account necessity and proportionality—which would have been taken into account by the Secretary of State in taking the decision in the first place—in the same way as the Secretary of State, or whether they should look at it simply through the eyes of a judge.

One of the most interesting sessions of the Joint Committee was in the Committee Room upstairs where we interviewed a judge from New Zealand—it was 5.10 am when the judge very happily came to address the committee. That is obviously a very different sort of country. With a couple of million people, they obviously do not have the same number of warrants to deal with as we do in this country. It seemed, however, from what the New Zealand judge was saying, that there was a happy relationship between him and the appropriate government Minister in New Zealand, in that when they looked at a warrant, they did so with the same eyes.

The noble Lord, Lord Carlile, is saying that if you take into account modern judicial review principles, you also take into account proportionality and necessity. But that has to be made clear. I understand that the Government made some changes in the other place with regard to this matter, but the precise role of the judge needs to be made clear. Does he or she look at a warrant simply as a judge or as a human being, and is it in the same way as the Secretary of State does?

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I begin with some of the observations made in your Lordships’ House regarding judicial oversight. On the observations of the noble Lord, Lord Strasburger, I have a double lock on my front door. The two locks work differently but they are equally effective. That really is the point of the double lock in the context of this legislation: the locks do indeed work differently but they are equally effective at the end of the day. I would adopt the observation of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, that judicial oversight as it has developed provides us with a flexible standard of oversight, which in many senses is wide-ranging, as has been observed. But, of course, it is judicial oversight, and that is what we have to emphasise.

Turning to a point raised by the noble Baroness, Lady Hamwee, on working days a week, we consider that the present provision is appropriate. As to the calculation of the working day, the third working day will be calculated from the day after the warrant is issued. For example, if a warrant is issued on a Monday, it must be authorised by the commissioner by the close of Thursday. So it is the date of issue plus three working days.

Amendments 39 to 42, 165A, 167 and 168A would significantly change the so-called double-lock safeguard, such that the judicial commissioner would be taking their own decision rather than reviewing the Secretary of State’s conclusions as to whether the warrant is necessary and proportionate. The Committee will appreciate that the issue of authorisation has been a central feature in the debate on the Bill. Perhaps I might just give a brief potted history of its development.

The three reviews that shaped the draft Bill—by David Anderson QC, the Intelligence and Security Committee of Parliament and the Royal United Services Institute surveillance panel—made different recommendations in respect of authorisation. One called for full Secretary of State authorisation and the other two called for a hybrid judicial/executive model. It is noteworthy that none of them called for full judicial authorisation for all warrants. The Joint Committee that undertook pre-legislative scrutiny of the draft Bill supported the double-lock approach set out in the Bill, including the use of the well-established principles of judicial review. At Second Reading in the other place, there was very strong cross-party support for a government amendment that preserved the double lock and the role of the judicial commissioner, while linking the judicial commissioner’s scrutiny to the new privacy clause, to put beyond doubt, if it needed to be, that the judicial commissioner would need to apply a sufficient degree of care to ensure that he or she had complied with duties imposed by the new protection of privacy clause in Part 1 of the Bill. So we are on well-trodden ground, and it is clear that there is strong support—including from senior members of the judiciary—for the approach set out in the Bill.

These amendments would confuse the distinct roles of the Executive and the judiciary and undermine democratic accountability—a point touched on by the noble Lord, Lord Rooker. It is surely right that a Secretary of State, who is accountable to Parliament and ultimately to the public, should be making the decision as to whether a warrant for the most intrusive powers is necessary and proportionate. Equally, it is entirely appropriate that a judicial commissioner should be carefully reviewing that decision. While the commissioner’s role is to review the original decision, your Lordships should be clear that this is a robust safeguard. Also, the judicial commissioners will have held or will be holding high judicial office and will be familiar with the principles of judicial review.

As amended in the other place, Clause 23 makes it clear that the commissioners’ review must involve careful consideration and ultimately if the Investigatory Powers Commissioner does not approve the decision to issue the warrant, it cannot come into force. The amendments I have referred to would also require the judicial commissioner to consider the reasons given for the decision to issue the warrant. The amendment is based on a misunderstanding of how warrants operate. The Secretary of State will receive a detailed application setting out the necessity and proportionality considerations. If they agree, they will issue the warrant. They do not have to give reasons for the decision beyond confirming that they personally consider that the warrant is necessary and proportionate. The judicial commissioner will review the decision of the Secretary of State based on the evidence provided to the Secretary of State in the application. If the commissioner thinks that the evidence in the application is not a sufficient basis for the decision that has been made, the commissioner will refuse to approve the decision. We would submit that it is in these circumstances that the double-lock mechanism is appropriate in this context, and accordingly I invite the noble Baroness to withdraw the amendment.

On Amendments 16 and 19, I have already touched on the reference to removing the term “working days”. Our position is that that is an appropriate way forward with these provisions, and I again invite the noble Baroness not to press these amendments.

Amendments 97 to 99 would significantly alter the double-lock safeguard for notices, such that the judicial commissioner would be taking their own decision rather than reviewing the conclusions of the Secretary of State as to whether the notice under Part 9 of the Bill is necessary and proportionate. The amendments would accordingly also remove the requirement for the judicial commissioner to apply the same principles as would be applied by a court in an application for judicial review. As discussed during scrutiny by this House of similar clauses in Part 2 of the Bill, these amendments would confuse the distinct roles of the Executive and the judiciary, as I mentioned earlier. It is right that a Secretary of State, who is accountable to Parliament and ultimately the public, should make the decision whether it is necessary and proportionate to impose obligations on operators through the giving of a notice. Equally, it is entirely appropriate that a judicial commissioner should be carefully reviewing that decision. As I stated previously, the commissioner’s role is to review the original decision, and your Lordships should be clear that this is a robust safeguard.

One of the amendments would also require the judicial commissioner to consider the reasons given for the decision to give a notice, and again as I indicated before, this amendment appears to be based on a misunderstanding of the process of giving a notice because the reasons are not provided. In other words, under the Bill there is no need to give written reasons over and above those set out in the application itself. Again, in that context I would invite the noble Baroness not to press the amendments.

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Perhaps the Minister can convince the House on these issues since the Government appear to have failed to convince the Delegated Powers Committee.

[Lord Murphy of Torfaen]

My Lords, this part of the Bill concerning Members of Parliament is a hugely important and grave issue, but I think it is probably about right now. As the House and the Minister will know, when the legislation went through the other place, there was a change. Instead of the Prime Minister being informed about a Member of Parliament or of this House having a warrant against them, now the Prime Minister must approve such a warrant. I think that is absolutely right.

There are a couple of points worth making. I agree with the noble Lord, Lord Beith, that the idea of the Speaker of the House of Commons being involved is a very difficult precedent to set, not only because it puts a great burden on the Speaker but because this part of the Bill refers not just to the British Parliament—both this House and the other place—but to the Welsh Assembly, the Northern Ireland Assembly, the Scottish Parliament and, for the time being at least, the European Parliament. If the Speaker was to be involved, surely it would be necessary for the Presiding Officers of those parliaments and assemblies also to be. Frankly, that is something that they would not particularly welcome.

With regard to the point made about the First Minister of Scotland, that same argument applies. If you say that the First Minister of Scotland ought to be involved, surely the First Minister of Wales would have to be involved and, presumably, the First and Deputy First Ministers of Northern Ireland as well—not to mention, for the time being, the President of the European Parliament. I am not sure that would work. Nevertheless, it is important that such matters are raised.

Finally, is the Wilson doctrine obsolete as a consequence of the legislation? Will it be replaced by what is now in the Bill, or does the Wilson doctrine still stand in the sense that it has always referred to a change of policy, rather than to individual people— Members of the House of Commons or whoever—who might be subject to interception? I would be grateful to the Minister if he said, when he responds, whether the Wilson doctrine is now finally dead and buried.

[Lord Rosser (Lab)]

Perhaps I may make a brief comment about Amendments 85A and 85B in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee. We, too, want to hear the Government’s response to the views expressed by the Delegated Powers and Regulatory Reform Committee. I will not go over those views, since the noble Lord, Lord Paddick, has already set them out. In brief, the first is the fact that paragraph 33 of Schedule 8 includes a power to amend the provisions of Schedule 8 itself. The committee said that it needed “a very convincing explanation” of why that was necessary; otherwise, it would find the power inappropriate. The other, as the noble Lord said, concerns the fact that the powers conferred by paragraph 33 of Schedule 8 include a power to amend future enactments whenever passed or made. The committee commented that it felt that such powers were inappropriate. In view of the comments made by the committee, we, like the noble Lord, wish to hear the Government’s response to the committee’s points.