My Lords, on behalf of my noble friend Lord Paddick and myself, as well as moving Amendment 39, I shall also speak to our other amendments in the group: Amendments 40, 41, 42, 43, 61, 97, 98, 99, 165A, 167 and 168A. We will not—at any rate today—be opposing the question that Clause 23 stand part of the Bill. I hope that the Minister got that message. We seem to have gone backwards and forwards on that.
I turn to the approval or disapproval of warrants by the judicial commissioner. My first amendment deals with the term “review”. This is related to, but not the same as, the judicial review principles. In Clause 39, I struggle to see that “review” is the correct term. In itself, “review” suggests consideration leading to a critique, but if you read a little further you find the terms “approval” and “refusal to approve” almost throughout. Maybe “determine”, which is the term we use in our amendment, is not the right term either and other terminology should be substituted, but we think it should be more than “review”, which seems a rather low-level approach for what is actually provided by the Bill.
We added Amendment 165A to the group. I am not suggesting that noble Lords should keep turning to the different clauses; the same points apply throughout, although no doubt there are other points that we have missed. Amendment 165A refers to Clause 100, where there is a point about the consistency of using “determine”.
Under Amendments 40, 42 and 168A, the judicial commissioner would be required to consider the reasons for the decision given by the decision-maker. We argue that they should not be bound by the decision-maker’s assessment of the facts.
There has been much discussion about judicial review principles. I accept that the approach to judicial review has evolved over the years. I know some of our resident lawyers are satisfied with the use of the term in the Bill, but others are not. It cannot be appropriate to include in legislation a term that has caused so much debate and given rise to such different advice as to what the term actually means. If what is meant is only process then we should say so, although I do not think Ministers are arguing that in relation to whether a decision-maker has addressed his mind to the issue. If it is intended—as it seems to me, reading the whole context for this—that the reasons for the decision are examined, we should say so; we should not leave room for doubt.
On Amendments 39 and 42, which are about interception warrants, similar points apply. On Amendments 97 to 99, which relate to the clauses that we shall come on to which deal with the approval of national security notices and technical capability notices, I accept that there may be different considerations
there but, given that one of those considerations is the decision is that of the Secretary of State, again our amendments about determination, reasons and so on would apply. I accept that what we have said is probably not as tidy as it might be. On Amendment 167, which relates to equipment interference, we again suggest “determining” rather than “reviewing” the conclusions.
The Law Society and the Bar Council argued in their evidence to the pre-legislative Joint Committee that the references to judicial review should be removed from the legislation for clarity. I was quite pleased when I came across that only this morning after we had tabled the amendment; it is quite nice to feel that we are not completely out on a limb. I understand that the director of national security in the Office for Security and Counter-Terrorism said in relation to the judicial authorisation of warrants:
“The specifics here are that two things will be critical: first, that they decide in the first place that the action is rational and lawful; and, secondly, that it is necessary and proportionate. Those are exactly the same tests as the ones the Secretary of State will be looking at”.
That leads me again to the view that removing judicial review would help avoid confusion.
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Amendments 43 and 61 are quite different. For the purposes of the relevant provisions, we say that the “days” provided by the Bill should not be working days. Clauses 24 and 36 are about urgent cases, and to us urgent cases require urgency all round. I do not believe that nine to five with weekends off is the way in which the judges operate. Clause 24 is about warrants issued without prior approval. There is a reference to the judicial commissioner, who has a period within which to take and notify the decision. I have two questions which I hope I adequately conveyed to the Bill team. First, in the clause as it stands, how long is,
“the period ending with the third working day”?
Does it end with the beginning of the third day, so that it might be two days, or with the end of the third day, so that it might be three days? Or there could be effectively an extra day on each if the warrant were issued early in the day. This may be a detail too far, but I think the Minister will understand why I should like to bottom this out. Also, if we confine ourselves to working days, we may actually be talking about five days if a weekend intervenes, or six if there is a public holiday, or perhaps even seven at Christmas or Easter, if those are added into the mix. Clause 36 is about modifications, which are the subject of a longer group where a similar point about working days arises.
So we are back to both substance and definition here. I hope that the Minister can help the Committee. I beg to move.