Baroness Jones of Moulsecoomb – 2016 Parliamentary Question to the Home Office

The below Parliamentary question was asked by Baroness Jones of Moulsecoomb on 2016-05-25.

To ask Her Majesty’s Government, in the light of their stated intention to require both ministerial and judicial authorisation for warrants under the Investigatory Powers Bill, why they consider it necessary to include a provision limiting judicial scrutiny to judicial review principles.

Lord Ahmad of Wimbledon

The Investigatory Powers Bill creates a “double lock” for the use of the most intrusive in-vestigatory powers such that a decision to issue a warrant must be approved by a Judicial Commissioner.

As the Secretary of State for the Home Department set out last November, this system balances Parliamentary accountability with independent consideration by a judicial authority. The application of judicial review principles is a robust, yet flexible, approach that the judiciary have significant experience in applying as the framework for independent scrutiny of Executive decision making. The ‘double-lock’, including the use of judicial review principles, was considered in detail by the Joint Committee that scrutinised the draft Bill. The Committee concluded that they were satisfied with the use of judicial review principles and that they would afford the Judicial Commissioners considerable flexibility in reviewing decisions to authorise the use of investigatory powers.

In response to concerns expressed during Commons Committee Stage, the Government tabled an amendment to the test at report. That amendment makes it clear that when carrying out their review of the decision to issue the warrant, the Judicial Commissioner must do so with a sufficient degree of care so as to ensure that the Commissioner complies with their duties under clause 5 (General duties in relation to privacy). There was strong support from across the House for this amendment.