My Lords, it is a pleasure to follow all those who have spoken in this group. The size of the group and the number of speakers are indicative of the seriousness with which the length of the list of agencies is viewed by Members of the House. I thank the Minister for her fortitude and patience on this fourth day in Committee on this important Bill, and for her letter earlier today inviting Members of the House to further briefings.
I repeat that she has made the case for the value of putting this kind of policy on a statutory footing, and I do not think anyone is really disagreeing with that in principle. The problem is that the detail of the Bill, by accident or design, creates a real constitutional over- reach with a grave risk of what the noble Baroness, Lady McIntosh of Pickering, called unintentional consequences. That is not to impute the Government with bad motives in this respect but it is to be really concerned about the unintended consequences of the overreach contained in various components of the Bill, in part because it grafts a criminal conduct regime on to what was previously just a surveillance regime, with no extra safeguards to speak of in terms of authorisation; in part because it creates no statutory limits on the types of offences that might be authorised; and of course in part because of this very long list of agencies that do very different work.
Ultimately, I say that the real overreach which makes that combination of challenges particularly problematic is that what is at stake is that the status quo, whereby an authorisation leads to a public interest defence—in practice, almost a presumption that the person authorised would not be prosecuted—will be replaced with total landmark immunity, lawful for all purposes, civil and criminal. That is what makes the list of agencies and the ability to amend it by Henry VIII powers so very grave and ripe for abuse well into the future by a Government of any stripe, whether, as I say, by accident or design.
I ask the Minister to reflect on whether Amendment 63, which is my favourite in this group, can be considered for adoption by the Government. I ask the Government to reflect and adopt some constitutional humility rather than overreach, and to accept that we are genuinely trying to help to improve this legislation so that it can do what it needs to, which is to put criminal conduct on an open, accessible, primary legislative footing, but not create the graver dangers of abuse well into the future.