Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010

With respect, the noble Baroness has understood what my answer might be. Given the wide-ranging nature of the area, it will inevitably contain elements of vagueness. There is, on one view, always an inherent ambiguity in any matter of law. The law courts have been full of that for many hundreds of years. The notion that we can suddenly produce a high level of lucidity is not, perhaps, a matter for statutory instrument. The central concern which the noble Baroness identified was the question of there being no judicial oversight. While it is absolutely true that these issues do not daily find themselves in a court of law, there is none the less, to a degree, an element of judicial oversight in that the commissioners themselves are drawn from those who have held high judicial office. If one considers that there are in excess of 500,000 applications annually, one can see that the implications for a hard-worked judicial system would be exceptionally threatening. With respect, I take issue with the characterisation of the authorisation structure as one of self-certification. What is set in place is a complex and sophisticated structure of authorising, where one must go to the authorising officer. In certain limited examples one must then go to an approving officer, which would be the Secretary of State or the chief commissioner. The point is that it is not simply a matter of an officer thinking, "I will authorise myself". He must go through a structure of getting approval and must keep reports and a record of all this so that the lawfulness of it may be attested. One knows that if there were a complaint, it could be brought to the Investigatory Powers Tribunal where, again, the rectitude of the decision could be assessed. Therefore, I respectfully suggest that the notion that this is simply a sham is erroneous. On the question of urgency, I apprehend that the noble Baroness did not in any way suggest that there was bad faith or that urgency was created simply to deal with a difficult situation without any reality. The problem is that, in this context, urgency is precisely what it means. There is a requirement, and if no senior authorising officer is available, a junior authorising officer will therefore be available. If it is of comfort, the use of authorisation in those circumstances is not of lengthy duration; my understanding is that it is 72 hours. The other question that the noble Baroness raised on this area was proportionality. Perhaps I dealt with that to a degree when I referred to the question being assessed by reference to facts and circumstances. However, the notion of proportionality does not lend itself to precise definition because it is inevitably a weighing, on the one hand, of the requirement for the intelligence, and, on the other, the extent of the intrusion into private or family life. Inevitably, there will be a lack of detail regarding proportionality. I should say again that if there are safeguards, the reporting by commissioners and the Investigatory Powers Tribunal should create a structure that is regarded as lawful and sufficient to provide a safeguard for this process. The only other matter, so far as I can detect, was raised by the noble Lord, Lord Pannick, in relation to whether the state prosecution would wish to rely in court on evidence obtained by these means. He invited me to consider the question raised by the statement of the noble and learned Lord, Lord Carswell, as to how he would see the matter if it were to come before him for judgment. Perhaps I may reassure the noble Lord that the Government are ad idem with the approach of the noble and learned Lord. I trust that I have answered most of the points raised by noble Lords. Motion agreed.