I beg to move amendment 104, in clause 24, page 18, line 38, leave out subsections (1) and (2) and insert—

‘(1) This section applies where a warrant issued under this Part would seek to authorise any activity which may involve access to special procedure material.

(2) Special procedure material subject to subsection (1) will include—

(a) communications which are subject to legal professional privilege;

(b) journalistic material which a person holds in confidence; and

(c) communications sent by, or intended for, a member of the relevant legislature.

(3) The warrant subject to subsection (1) may only be granted on application to a Judicial Commissioner.

(4) The Judicial Commissioner must be satisfied that there are reasonable grounds for believing that—

(a) a criminal offence has been committed;

(b) the material is likely to be of substantial value to the investigation of that offence;

(c) other proportionate methods of obtaining the information have been tried without success or were not tried because they were bound to fail;

(d) it is in the public interest that the warrant is granted, having regard to the—

(i) benefit likely to accrue to the investigation and prosecution if the information is accessed,

(ii) importance of the prosecution, and

(iii) importance of maintaining public confidence in the confidentiality of material subject to legal professional privilege, the integrity of journalists’ sources, and/or communications with members of relevant legislature.

(5) Material is subject to legal professional privilege means—

(a) communications between a professional legal adviser and his client or any person representing his client made in connection with the giving of legal advice to the client;

(b) communications between a professional legal adviser and his client or any person representing his client and any other person with or in contemplation of legal proceedings or for the purposes of such proceedings;

(c) items enclosed with or referred to in such communications and made in—

(i) connection with the giving of legal advice, or

(ii) connection with the contemplation of legal proceedings or for the purposes of such proceedings.

(d) communications made with the intention of furthering a criminal purpose are not subject to legal professional privilege.

(6) A person holds journalistic material in confidence for the purposes of this section if—

(a) it is held subject to such an undertaking, restriction or obligation;

(b) it has been continuously held (by one or more persons) subject to such an undertaking, restriction or obligation since it was first acquired or created for the purposes of journalism.”.

This amendment establishes a consistent approach to the safeguards afforded to parliamentarians, legally privileged material and journalists seeking to protect their sources.

With this it will be convenient to discuss the following:

Amendment 92, in clause 24, page 18, line 38, leave out subsections (1) and (2) and insert—

‘(1) This section applies where a warrant issued under this Part would seek to authorise any activity which may involve access to special procedure material.

(2) Special procedure material under subsection (1) will include—

(a) communications which are subject to legal professional privilege;

(b) journalistic material which a person holds in confidence;

(c) communications sent by, or intended for, a member of a relevant legislature.

(3) A warrant under subsection (1) may only be granted on application to a Judicial Commissioner.

(4) To approve a warrant under subsection (3), a Judicial Commissioner must be satisfied that there are reasonable grounds for believing that—

(a) a criminal offence has been committed,

(b) the material is likely to be of substantial value to the investigation of that offence,

(c) other proportionate methods of obtaining the information have been tried without success or were not tried because they were bound to fail, and

(d) it is in the public interest that the warrant is granted, having regard to the—

(i) the benefit likely to accrue to the investigation and prosecution if the information is accessed,

(ii) the importance of the prosecution, and

(iii) the importance of maintaining public confidence in the confidentiality of material subject to legal professional privilege, the integrity of journalists’ sources, and/or communications with members of a relevant legislature.

(5) Material subject to legal professional privilege means—

(a) communications between a professional legal adviser and his client or any person representing his client made in connection with the giving of legal advice to the client;

(b) communications between a professional legal adviser and his client or any person representing his client and any other person with or in contemplation of legal proceedings or for the purposes of such proceedings;

(c) items enclosed with or referred to in such communications and made—

(i) in connection with the giving of legal advice or;

(ii) in connection with the contemplation of legal proceedings or for the purposes of such proceedings.

(d) communications made with the intention of furthering a criminal purpose are not subject to legal professional privilege.

(6) A person holds journalistic material in confidence for the purposes of this section if—

(a) it is held subject to such an undertaking, restriction or obligation; or

(b) it has been continuously held (by one or more persons) subject to such an undertaking, restriction or obligation since it was first acquired or created for the purposes of journalism.”.

This amendment establishes a consistent approach to the safeguards afforded to parliamentarians, legally privileged material and journalists seeking to protect their sources.

Amendment 63, in clause 24, page 19, line 7, leave out subsection (2).

Amendment 64, in clause 24, page 19, line 8, at end insert—

‘(2A) Where a warrant is likely to cover special procedure material, the procedure set out in subsection (2C) applies.

(2B) Where a warrant is likely to cover excluded procedure material, the procedure set out in subsection (2D) applies.

(2C) Further to requirements set out elsewhere in this part, the Judicial Commissioner may only issue a warrant likely to cover special procedure material if —

(a) There are reasonable grounds for believing that an indictable offence has been committed,

(b) There are reasonable grounds for believing that the material is likely to be of substantial value to the investigation in connection to the offence at (a),

(c) Other proportionate methods of obtaining the material have been tried without success or have not been tried because it appeared that they were bound to fail,

(d) It is in the public interest having regard to—

(i) the democratic importance of freedom of expression under article 10 ECHR to grant the warrant; or

(ii) the democratic interest in the confidentiality of correspondence with members of a relevant legislature.

(2D) Further to the requirements set out elsewhere in this part, the Judicial Commissioner may only issue a warrant likely to cover excluded procedure material in accordance with provisions in Schedule 1 of the Police and Criminal Evidence Act 1984 (PACE) and Schedule 5 of the Terrorism Act 2000.

(2E) An application for a warrant under this Part must not be granted where the information could be sought using a warrant under Schedule 1 of PACE, unless seeking this information under PACE would defeat the purpose of the investigation.

(2F) In this section “special procedure material” means—

(a) special material as defined in section 14 of the Police and Criminal Evidence Act 1984; or

(b) correspondence sent by or intended for a member of the relevant legislature.

(2G) In this section “excluded procedure material” has the same meaning as in section 11 of the Police and Criminal Evidence Act 1984.”.

Amendment 80, in clause 225, page 176, line 44, at end insert

“and for the purposes (and only the purposes) of this Act, including the application of paragraphs (a), (b) and (c), a “criminal purpose” includes the purpose of—

(i) doing or facilitating anything involving an imminent threat of death or serious injury or an imminent and serious threat to national security, or

(ii) concealing, or impeding the detection or prevention of, the doing or facilitation of any of those things;”.

I will speak first to amendment 92, which is on page 18 of the amendment paper. The amendment would introduce additional protection for three special categories: those involving legal professional privilege; that involving journalistic material; and that involving members of a relevant legislature, including MPs. I will also address amendment 63, which is on page 19 of the amendment paper and would remove clause 24(2), to be replaced by amendment 64. For the benefit of the Solicitor General, I indicate that I will address only the principle. Having reviewed the wording, the amendments would not achieve the intended purpose for all the categories I mentioned, and therefore the amendment 104 will not be pressed to a vote. I am therefore speaking to the principles relating to legal professional privilege, journalistic material and members of a relevant legislature.

Again for the benefit of the Solicitor General, I will make my submissions on legal professional privilege under the amendments to clause 25, which deals with said privilege. In other words, I recognise that amendment 92 does not work in the intended way for clause 24.

On the general principles, the first thing to say about journalistic material and communications sent by or intended for Members of this Parliament and other relevant legislatures is that the protection is not for the benefit of the journalist or the Member of Parliament but for the wider public good. One of the difficulties with clauses 24 and 25, but particularly clause 24, is that there is simply no reference in the Bill to any special protection for journalists in relation to intercept warrants.

I think the Minister for Security has just gone off to a meeting with the National Union of Journalists, at which the NUJ will raise its concerns with him. He may well have further points to make once he has had those discussions, but the provision for journalists is currently found only in paragraph 9.27 and the following paragraphs of the code. The provisions are there for Committee members to read, but they really do not amount to any special protection for journalists; they simply amount to an exhortation in the code for special attention and focus to be given to necessity and proportionality when dealing with confidential journalistic content.

Even if the wording does not work, the thrust behind amendment 92 is that, in relation to intercept warrants, there ought to be something in the Bill that recognises the special need to protect confidential journalistic material that is held in confidence. That is not recognised in the Bill, and it is not good enough to have it in a code of practice. I urge the Solicitor General and the Minister for Security, perhaps after hearing from the NUJ, to consider how and where on the face of the Bill it is appropriate to properly protect journalistic material. Of course clause 68 makes special reference to journalistic material, but that is strictly confined to communications data and does not apply to interception or to wider powers in the Bill.

As I say, I will not press the amendment to a vote because, on reflection, it does not serve its intended purpose, but I invite the Solicitor General to reflect on its principle and engage with us in putting something into the Bill that properly recognises and protects journalists. If I may, Mr Owen, I shall deal with legal professional privilege in a moment.

Picking up on what the hon. and learned Gentleman just said, the purpose of amendment 104 is to address a lack of consistency of approach in the Bill regarding the protection afforded to correspondence with Members of Parliament, journalists and lawyers. I stress that the purpose behind the amendment is not to seek a particular privilege for parliamentarians, lawyers or journalists, but to protect the correspondence of members of the public with lawyers, parliamentarians and journalists.

The Bill contains different approaches. Clause 24 affords protections to Members of Parliament subject to targeted interception warrants, but not to journalists seeking to protect their sources. Similarly, although the provisions later in the Bill on access to communications data to target journalistic sources provide for authorisations to be subject to judicial review, access to other comms data that might engage the privilege afforded to Members of Parliament or to legally privileged material is not so protected.

Amendment 104 would provide consistency of approach to all three categories of privileged information, modelling the approach broadly on the provisions in the Police and Criminal Evidence Act 1984—an English Act for which I must say I have much admiration. I am still trying to get to grips with it, but I think it is a good piece of legislation. It protects legally privileged material and journalistic material from interference during police searches.

The amendment would also provide a special procedure for access to MPs’ and journalists’ correspondence, which would be dependent on independent judicial authorisation, as opposed to authorisation by politicians. With all due respect to the Home Secretary, I did not find her triple lock on protection for parliamentarians terribly convincing. That is not a point about the present Government—it could apply to any Government of any persuasion—but it seems to me that having the Prime Minister as the triple lock does not give the appearance of political impartiality. Where parliamentarians’ communications are being interfered with, the authorisation should be judge-only.

Last night, I chaired an event with speakers from the Bar Council, the Law Society of England and Wales and the National Union of Journalists. They all consider that the protections in the Bill for journalists, for legal professional privilege and for parliamentarians are not sufficient. My own professional body, the Faculty of Advocates, which is the Scottish equivalent of England’s Bar Council, also considers that the protections in the Bill are not sufficient, as does the Law Society of Scotland.

I will quote what the Law Society of Scotland said in its evidence to the Joint Committee:

“On the 14 December we provided oral evidence to the Joint Committee, alongside the Law Society of England and Wales, expressing our shared and serious concerns in relation to professional legal privilege and the provisions of the Bill. Legal professional privilege”— referred to in Scotland as the obligation of confidentiality—

“is key to the rule of law and is essential to the administration of justice as it permits information to be exchanged between a lawyer and client without fear of it becoming known to a third party without the clear permission of the client. Many UK statutes give express protection of LPP and it is vigorously protected by the courts. The ‘iniquity exception’ alleviates concerns that LPP may be used to protect communications between a lawyer and client which are being used for a criminal purpose. Such purpose removes the protection from the communications, allowing them to be targeted using existing powers and not breaching LPP.”

I do not wish to be seen to be making any special pleading, either as a lawyer and a politician or on behalf of the journalist profession. It is more about special pleading on behalf of the members of the public who contact journalists, parliamentarians and lawyers, and who wish to do so in confidence for a very good reason.

I am grateful to the hon. and learned Member for Holborn and St Pancras for seeking not to get ahead of himself with respect to the arguments on legal professional privilege. I feel a degree of sympathy, because the hon. and learned Member for Edinburgh South West was inevitably going to deal with these matters in the round. Although different considerations apply to each category—parliamentarians, journalists and legal professionals—both hon. and learned Members are absolutely right to lay emphasis not on individuals in those professions but on the client, the source and the constituent. That is why these roles have a special status: it is about the wider public interest. The Government absolutely understand that and we place it at the very heart of our consideration of how warrantry should operate in these areas.

As you will know, Mr Owen, there has already been significant movement by the Government as a result of the various reports that we know all too well. I am delighted that matters of legal professional privilege are now in the primary legislation in great measure. The debate will therefore be about the extent to which safeguards are placed in the primary legislation and about what form they take. I will heed the hon. and learned Gentleman’s exhortation and not stray too far into that area.

I will therefore deal with the amendment to clause 24 and the question of parliamentarians. We heard last year the Prime Minister’s statement about the issue and the important requirement that he or she is to be consulted before the Secretary of State can, with judicial commissioner approval, issue a warrant to acquire communications sent by or intended for a member of a relevant legislature. The clause applies to all warrants for targeted interception, with the exclusion of warrants authorised by Scottish Ministers, and includes the all-important requirement for the Prime Minister to be consulted before a targeted examination warrant can be issued to authorise the examination of a parliamentarian’s communications collected under a bulk interception warrant.

Part 5 contains similar provisions for equipment interference carried out by the security and intelligence agencies. The important protection in clause 24 will apply to the communications of Members of Parliament, Members of the House of Lords, United Kingdom MEPs and Members of the devolved Parliaments and Assemblies. It is important to observe that for the first time, what was a doctrine for the best part of 50 years is now codified and enshrined in primary legislation.

It is important to remember in the spirit of the wider public interest that nobody, least of all parliamentarians, is above the law. The Wilson doctrine has perhaps been misunderstood for many years as a blanket exemption for parliamentarians, but that is exactly what it was not. It was actually an explanation that there will be times when the national or the public interest demands that the communications of Members of Parliament be intercepted because there might be criminal purpose behind them. We hope that that will never happen, but sadly human experience teaches us otherwise. It is therefore important to strike a balance between the proper exercise of the privileges of being a Member of this place or of the other Assemblies and Parliaments in the United Kingdom and the principle of equality before the law.

The amendments introduce the concept of special procedure material and try to combine the approach to the safeguards afforded to the three categories that I have discussed. To put it simply, I submit that what is on the face of the Bill and in the accompanying codes of practice already provide those safeguards and indeed go beyond what can be encompassed in primary legislation. At this stage, I will not say anything further, because I want to deal with points that I know hon. Members will raise about the other categories.

Can I ask the Minister about journalistic sources? I am concerned that there is nothing about them on the face of the Bill. He will know how anxious journalists are about this. Will he consider whether something should be put on the face of the Bill? There is an inconsistency: in other parts of the Bill, such as clause 68, there is express provision relating to journalists. There is something in the code of practice, but there is nothing on the face of the Bill, which is the problem. Without committing himself to a particular form of words, will he commit to considering one and perhaps liaising with us about what form it could take?

I am mindful of the fact that my colleague the Security Minister is meeting with the National Union of Journalists. I cannot commit the Government to a particular course of action, but let me put this on record. We are absolutely committed to the preservation and protection of a free press and freedom of expression in our democratic society. That includes the ability of sources to provide anonymous information to journalists, which is absolutely vital if we are to have throughput of important information that needs to be in the public domain.

At the same time, there is a danger. We must not unduly fetter, on the face of the legislation, the important work of our law enforcement, security and intelligence agencies. We live in an age of constant blogging and other social media tools. Journalists themselves do not like being defined as a profession. I have been criticised in the past for using that terminology when talking about journalists, for example in the context of the Leveson process. Now, however, there are increasingly wide and loose definitions of who are journalists and what journalism is, and my worry is that that will, and does, inadvertently prevent legitimate investigation of those who are threatening our national security or who are planning to commit serious crime.

There is a problem here. In spirit, I am absolutely with the hon. and learned Gentleman in considering the matter, but the problem with defining “journalism” is that it might be defined too tightly and narrowly so as not to include legitimate sources of information, or it might be defined unfeasibly widely and so could provide a hiding place for the sort of individuals or groups that no one in this House would regard as serving the public interest—in fact, we would regard them as acting against the public interest. For that reason, I urge great caution when dealing that aspect of the Bill.

The Bill strengthens safeguards for journalists because it will require that all interception and equipment interference warrants, including those relating to journalists or their sources, must be approved by a senior judge before coming into force. Warrant applications will make it clear if confidential journalist information is involved. Also, a judicial commissioner will need to be notified if such information is to be obtained. We would not want a situation in which, for example, material relating to the obnoxious and repugnant activities of Daesh somehow fell into a category that we would regard as wholly inappropriate. For those reasons, I invite hon. Members to withdraw the amendment.

I have already indicated that I am not putting the amendment to the test. I beg to ask leave to withdraw the amendment.

That is my position as well. I am happy to have addressed the principle at this stage and to look at an amendment at a later stage.

Amendment, by leave, withdrawn.

Clause 24 ordered to stand part of the Bill.

Clause 25