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Baroness Hilton of Eggardon: My Lords, I am grateful to the Minister for her sympathetic understanding of the difficulty. It is a difficulty depending on which parts of the Bill are amended. If finally a large number of people can give authority some such amendment to the Bill may be required. However, in the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 97 [Principal functions of Chief Commissioner]:
Lord McIntosh of Haringey moved Amendment No. 5:
Lord Browne-Wilkinson: My Lords, I do not believe that the amendment merits being pressed to a Division, but there are questions which I hope may receive further attention. Obviously, the importance of the amendment depends largely on the authorising procedure that is eventually adopted. Under the Bill as originally presented, there was to be no prior authorisation. The only judicial check on the legality of what was proposed was an ex post facto check by a commissioner. Now, depending on which side of the House one sits, there may be any number of prior authorisations, some of which may be judicial and some of which will not.
However, even under the amendment tabled by the Labour Party and passed on Report, there are instances in which prior judicial authorisation is not required. Your Lordships will recall that under Clause 91 prior authorisation is required only where there is an interference with property in respect to premises. Even under the Labour Party amendment, we are left without any requirement for prior authorisation, first, as regards the bugging of vehicles. I believe that it was intended to exclude that. It means that in the heat of the operational
Its direct relevance to the present provision is that there will be cases in which surveillance not involving an entry onto premises will involve subsequent ratification by a commissioner. That is where the magic words "the principles for judicial review" come into effect. If a judge is given the power to authorise within the powers conferred on him, he decides where the balance lies; he decides what is right and wrong. In the process of judicial review, the judge is not the decision maker any more than the commission would be. In the ordinary case, the Minister is the decision maker; the judge simply reviews it for legality. So it is in the case here. If the chief constable has authorised remote surveillance, that would require review by a commissioner after the event. In those circumstances, the function of the commissioner/judge would not be to decide whether he thought it was justified to exercise his own judgment. Only if there were a clear departure from the law or the reviewing commissioner thought that no constable in his right mind could have reached the conclusion that it was a proper decision could anything be done about it. It is the judicial review principle of irrationality.
I draw attention to that primarily to get it on the record. I hope that when this matter is looked at again, further consideration will be given to whether it is right simply to have the judge/commissioner approaching those cases not on the basis of what he thinks is right or wrong but whether it has been demonstrated that the chief constable has reached a view which is wholly irrational. I do not believe that is an adequate protection by itself.
Lord Hacking: My Lords, as a lawyer who sits on these Benches, perhaps I may ask my noble friend to look again at these matters for the reasons that have been advanced, in particular by the noble and learned Lord, Lord Browne-Wilkinson. I shall not try again to develop the education of the noble Lord, Lord McIntosh, on the test for judicial review. It suffices to say that the function here must be a primary function and not a judicial function.
Baroness Blatch: My Lords, again we are discussing this amendment in a vacuum and it is difficult. Nevertheless, the amendments must be seen within the wider context of Clause 97 and Schedule 7 as a whole. The provisions of the Bill are concerned not with the
The amendments approved on Report envisaged two different authorisation procedures. The intention of the new Clause 91 was that some authorisations by chief officers would not take effect until approved by a commissioner; but in other cases the authorisation would continue to be given by the chief officer alone, a point made by the noble and learned Lord, Lord Browne-Wilkinson. The intention of the rather different amendments to what is now Clause 92 was that all authorisations would be given by a circuit judge. In the light of those amendments, the Bill as it stands at present does not specify what test is to be applied by an authorising circuit judge or by a commissioner when deciding whether to give or withhold approval and certainly does not limit it to applying the principles of judicial review.
However, I confess that there was a good deal of confusion on this point during our debate on Report. The noble Lord, Lord Lester of Herne Hill, is not in his place but I hope that I can be forgiven for praying in aid what he said at col. 498 of Hansard:
Slightly later on, the noble Lord said:
This is a matter which clearly requires further thought in the light of the amendments which the House passed last week. Whatever the outcome of that further work, different considerations apply at the review stage to which Clause 97(5) and Amendment No. 5 refer. That is because at that stage the commissioner is reviewing an authorisation which has already been given by a circuit judge or a commissioner as the Bill currently stands, and from which information may already have been obtained. The same is true in relation to the investigation of complaints to which Schedule 7 and Amendment No. 8 refer. In our view, whoever takes the original decision, the test at the review stage should be different. It should not simply be another assessment of the merits but should consider whether the decision was taken properly in accordance with judicial review principles.
I accept entirely that the situation now is rather confused. We clearly need to sort out who precisely will be giving authorisations and in what circumstances that will be done. That is the principal question on which we shall seek to find a workable way forward in the light of the amendments passed and in the light of the need to ensure that the police are able to combat effectively serious, organised crime.
As the House is aware, the Government believe that the training, experience and accountability of chief officers makes them best equipped to make what are essentially operational judgments. That is a separate issue. It must surely be right that once an authorisation has been finally given, any review of the kind envisaged in Clause 97 and Schedule 7, to which these amendments refer, must not simply second guess the original decision but should consider whether it was reasonable, properly reached and based in law.
That is what the Bill, as drafted, provides. That issue will require further consideration in the light of the authorisation process ultimately agreed. However, I do not think that it will help that process or that it is right on the merits of the Bill as it now stands for us to change along the lines proposed the test which is to be applied after an authorisation has been properly given.
To allow someone who is conducting such a review simply to substitute his judgment for that of the person giving the original authorisation would confuse the functions of authorisation and review. Throughout our discussions on the Bill, we have held that making authorisations and the functions of review should be distinct and separate. It would put those giving authorisation, whether circuit judges, commissioners, or even chief officers, in a very difficult position.
Under the amendment, we must now contemplate the prospect of yet another commissioner to review the commissioners who approve intrusive surveillance. When we discussed this matter on the last occasion, the noble Lord said that authorisation would be made by chief officers. Prior approval would be given by the commissioner. The authorisation technically, only with prior approval, would be given by the chief constable. Now we hear that there will be another commissioner or a body of commissioners--and the noble Lord actually said that--reviewing the authorising officer who could be interpreted as being either the commissioner who approves and the chief constable who authorises or one or the other.
As regards the proposal that a circuit judge should give the authorisation, I am not sure whether the amendment envisages any reviewing function of that decision at all or even whether the judicial test is to be set aside if there is to be a reviewing function. As we understand it, the commissioners will be empowered to second guess, if one sets aside the judicial review test, an operational authorisation given by a circuit judge. This is clearly unfinished business and it would be quite inappropriate for the House to take a view on the amendment.
Page 40, line 15, leave out from ("shall") to end of line 16 and insert ("consider all the circumstances of the case").
The noble Lord said: My Lords, I shall speak also to Amendment No. 8. Amendment No. 5 is in Clause 97, whereas Amendment No. 8 is in Schedule 7 and therefore deals with complaints.
We are trying to remove judicial review criteria which, under the Bill, would determine the basis on which the commissioner, first, reviews and, secondly, considers complaints about authorisations for intrusive surveillance.
The situation has changed dramatically as regards the Bill as printed and its final form. First, thanks to the Government's concessions on Report, there is now provision for a body of commissioners rather than a single commissioner. Secondly, our amendments carried on Report provide that the commissioners or one of them should be responsible for the prior judicial authorisation of intrusive surveillance.
Both of those changes increase the arguments for the amendments rather than diminish them. The Government's previous difficulty with the amendments appeared to be the risk of what the Minister called second-guessing; in other words, the risk that a commissioner would be judging his own original authorisation.
With the acceptance of the need for a body of commissioners, that need not be the case. I do not know whether further amendment will be required, but I shall be happy to see a provision, which can be made administratively, to the effect that a commissioner different from the commissioner who was responsible for the initial authorisation shall be responsible for the review
Without commitment to what may happen in another place or administratively after the change in government, I envisage that, for example, one of the
presiding judges in each of the circuits could be sworn in as a surveillance commissioner in order to perform locally the authorising functions which are called for in the amendments. We have not teased out the Government's view on prior judicial authorisation, but we can at least assume that there is a substantial chance that if they continue to set their face against prior authorisation they will not succeed in persuading the House of Commons that that is the right action. I believe that the Bill will finally reach the statute book with prior judicial authorisation and we will all be much relieved for that.
If, as a result of my amendments, prior authorisation is by a commissioner there could be another commissioner, or another body of commissioners which performs the review tasks of the commissioning body, who is responsible for the review. Under those circumstances, it is more important that such a review should be on all the circumstances of the case rather than on judicial review criteria. Judicial review criteria would mean that the commissioner was restricted to procedural propriety and reasonableness--that is, deciding whether the decision was such that no reasonable authorising officer could have made it--in deciding whether the authorisation or approval was properly given.
That weights the case very strongly against the subject of the intrusive surveillance in Amendment No. 5 or against the complainant in Schedule 7. There must be scope for all the circumstances of the giving of the authorisation to be considered and weighed against the criteria which are set out in what is now Clause 92. I submit humbly as a non-lawyer that there is nothing to suggest that, on occasion, judges are in any way unwilling to disagree with each other when they have different functions to perform. I hope that they will find nothing improper in the amendments because I believe that they are sensible and I commend them to the House. I beg to move.
4.30 p.m.
"Unless I am completely mistaken, the commissioner is applying judicial review principles. He is not taking operational decisions himself. That is the vital point. He applies judicial review principles".
"The function of the judge at the outset is to decide whether the operational decision is according to the rule of law...If it were an operational decision then the judges would be running the police service, which is not at all the position of the Opposition parties".--[Official Report, 20/1/97; cols. 498 and 499.]
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