Investigatory Powers Bill

Debate between Viscount Hailsham and Lord Brown of Eaton-under-Heywood

Wednesday 13th July 2016 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, I will confine myself to Amendments 39 to 42. I have a great deal of sympathy for the thinking that lies behind these amendments. To my mind, this is one of the most important parts of this part of the Bill, because judicial oversight seems to me to be absolutely essential if there is to be public confidence in the working of the Act, should this Bill be enacted.

My own feeling is that the provisions do not go far enough. It is a long time since I have had to study or discuss judicial review and I am cautious about doing so in the presence of many lawyers more distinguished than me, but my recollection, broadly speaking, is that the judicial commissioner will examine whether the powers have been exercised intra vires and not unreasonably. I am bound to say that I want to go beyond that. I should like to see some review of the merits—more particularly, addressing whether the issue of the warrant is properly supported by the material advanced in support of its issue and whether it is truly within the scope of the statutory criteria. I do not think this is provided for by the Bill as presently drafted. I am not saying that the amendments put forward solve the problem, but they are heading in the right direction. I would welcome any movement from my own Front Bench which may address this point.

I want to make one other small point about judicial review. I have already owned up that my recollection of judicial review is pretty faint, but I know that it develops a lot. There is not always a unanimity of view as to what the principles are because they develop and you get divided judgments, even from the Supreme Court. The principles of judicial review change as time goes on. It makes it very difficult to know whether the statutory requirement, as provided in this Bill, is satisfied.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I confess to taking a rather different view of this. This is a question of judicial oversight; it is not in principle judicial initial decision-making. I am perhaps a little out of date, although I have been at pains to keep up to date with developments, and as the noble Baroness and the noble Viscount have already recognised, there have been significant developments. This is not just about process; it is not what used to be called Wednesbury review, or perversity or irrationality. Nowadays it has developed into an appropriately flexible standard of oversight. Even without the explicit requirements to look at the necessity, the proportionality and the requirements of the human right to privacy, as there are here, there is in the modern concept of judicial review an ample opportunity.

In recent cases—I am looking at the Judicial Review publication of March of this year, so it is fairly up to date—the noble and learned Lord, Lord Mance, in one of these recent cases such as Kennedy, Pham, and so forth, said that it was,

“improbable that the nature, strictness or outcome of such a review would differ according to whether it was conducted under domestic principles or”,

the EU law principle of proportionality. Therefore, even without the explicit requirement to look at proportionality, as there is in respect of all these oversight obligations, there is here an appropriate degree of flexibility.

You want an element of flexibility—you want the judge plainly to be able to take account of the nature of the underlying decision he is reviewing and of the extent to which there has been an invasion of privacy, against which this judicial oversight is designed to protect the citizen. This matter has been thrashed out; if you read the two days of debate in the other place, you see that there was some appropriate degree of give. However, I respectfully suggest that the oversight as now provided for is, if not more than adequate, certainly adequate.

[Lord Carlile of Berriew (LD)]

My Lords, we first have to decide what we want. Do we want judicial decision-making on these warrants and similar provisions, or the judges to review the legality of ministerial decisions? In my view, as a matter of constitutional principle, we do not want the judges to make the primary decisions but to review the legality of those decisions. I agree entirely with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, in this regard.

For the nerds among us, there is a regular publication called the Administrative Court Digest—the AC digest—which I read with enthusiasm every time I receive it. It is extremely interesting, because it demonstrates that judicial review is not some kind of dry, legalistic test of precise processes followed by government and government officials but a wide-ranging test of legality. If the factual decisions that have been reached are so wrong that they should properly be regarded as unlawful, they are judicially reviewed as unlawful.