I beg to move amendment 49, in clause 25, page 19, line 22, after “items”, insert “presumptively”.

With this it will be convenient to discuss the following:

Amendment 51, in clause 25, page 19, line 31, leave out paragraph (3)(a) and insert—

“(a) that compelling evidence indicates that the items in question consist of, or relate to, communications made for a criminal purpose such that it is necessary to authorise the interception, or (in the case of a targeted examination warrant) selection for examination, of those items, and”.

Amendment 82, in clause 37, page 31, line 7, at end insert—

“(3) But this section does not authorise interception of a communication containing items presumptively subject to legal privilege.”

Amendment 75, in clause 42, page 33, line 30, at end insert—

“(4) But this section, nor section 43 or section 44, do not authorise interception of a communication containing items presumptively subject to legal privilege.”

Amendment 76, in clause 45, page 35, line 9, at end insert—

“(5) But this section does not authorise interception of a communication containing items subject to legal privilege.”

Amendment 81, in clause 225, page 177, line 6, at end insert—

“presumptively subject to legal privilege”, in relation to an item, means that disregarding any question of criminal purpose, the item falls to be treated as subject to legal privilege;”.

New clause 2—Items subject to legal privilege—

“(1) A warrant under this Chapter, or under Chapter 1 of Part 6, may not authorise conduct undertaken for the purpose of doing anything in relation to—

(a) a communication, insofar as the communication consists of matters subject to legal privilege; or

(b) related communications data, insofar as the data relate to the communication of matters subject to legal privilege.

(2) For the purposes of subsection (1), legal 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.

(3) Communications made with the intention of furthering a criminal purpose are not subject to legal privilege.

(4) An application which contains a statement that the purpose of a warrant is to access communications made for the purpose of furthering a criminal purpose, but which would otherwise attract legal privilege must be considered by a Judicial Commissioner.

(5) A Judicial Commissioner may issue a warrant sought under subsection (3), if satisfied that—

(a) there are reasonable grounds to believe that the communications are made with the intent of furthering a criminal purpose;

(b) that the material is likely to be of substantial value to the investigation in connection with which the application is made;

(c) that the material concerned is likely to be relevant evidence;

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

(e) 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) the importance of the prosecution, or

(iii) the importance of maintaining public confidence in the confidentiality of material subject to legal professional privilege.

(6) A code of practice issued under Schedule 6 must contain provision about—

(a) the steps to be taken to minimise the risk of conduct undertaken pursuant to a warrant to which this section applies resulting in accidental acquisition of a communication, or communications data, falling within subsection (1); and

(b) the steps to be taken if it appears that such conduct has accidentally resulted in acquisition of such a communication or data.”

This new clause is intended to replace existing clause 25 and seeks to clarify the approach to legal privilege in line with existing law.

New clause 6—Items subject to legal privilege—

“(1) A warrant under this Chapter, or under Chapter 1 of Part 6, may not authorise conduct undertaken for the purpose of doing anything in relation to—

(a) a communication, insofar as the communication consists of matters subject to legal privilege;

(b) related communications data, insofar as the data relate to the communication of matters subject to legal privilege.

(2) For the purposes of subsection (1), legal 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 privilege.

(3) An application which contains a statement that the purpose of a warrant is to access communications made for the purpose of furthering a criminal purpose, but which would otherwise attract legal privilege must be considered by a Judicial Commissioner.

(4) A Judicial Commissioner may issue a warrant sought under subsection (3), if satisfied that—

(a) there are reasonable grounds to believe that the communications are made with the intent of furthering a criminal purpose;

(b) that the material is likely to be of substantial value to the investigation in connection with which the application is made; and

(c) that the material concerned is likely to be relevant evidence;

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

(e) 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.

(5) A code of practice issued under Schedule 6 must contain provision about—

(a) the steps to be taken to minimise the risk of conduct undertaken pursuant to a warrant to which this section applies resulting in accidental acquisition of a communication, or communications data, falling within subsection (1);

(b) the steps to be taken if it appears that such conduct has accidentally resulted in acquisition of such a communication or data.”

This new clause clarifies the approach to legal professional privilege on the face of the Bill and brings it into line with the spirit of existing case law, the common law and PACE.

We come to this late, but the provision is an important one. I will try to be brief and to the point. The clause deals with legal privilege. I acknowledge that the Government have responded to the various recommendations so far, setting the provision out in a different form in the Bill.

There are, I am afraid, still problems. I have been discussing those with the Bar Council, which is concerned about the form in which the provision appears in the Bill. I invite the Committee to look at the clause. Subsections (1), (2) and (3) deal with a situation in which the purpose of an intercept warrant is to target material subject to legal privilege and, correspondingly, in relation to targeted examination. Those subsections are relevant to the targeting of material subject to legal privileges. Subsections (4), (5), (6) and (7) serve a slightly different purpose, which is the position if a warrant, although not targeted, may be likely to include items subject to legal privilege.

The difficulty with the first three subsections—this is the strong view of the Bar Council, borne out in the code of practice itself—is that

“Legal privilege does not apply to communications made with the intention of furthering a criminal purpose (whether the lawyer is acting unwittingly or culpably).”

If the communication furthers a criminal purpose, legal privilege simply does not apply. If left unamended, subsections (1), (2) and (3) would allow the targeting of legally privileged material which does not further a criminal purpose, and therefore falls outside the limits of legal privilege itself.

The Bar Council’s point, which is a good one, is that once legal privilege is properly understood it becomes clear that legally privileged material should not be targeted. If the argument is that we may have to target communications between a lawyer and client in which they further a crime—I accept that there have been examples of that—in those circumstances the material has already lost its legal privilege and therefore does not need to be targeted. In fact, something that is not legally privileged is being targeted. It is a very serious point, and new clause 2 was intended to help set out what the Bar Council suggests is a better formulation of clause 25. Subsection (3) of new clause 2 makes it clear that:

“Communications made with the intention of furthering a criminal purpose are not subject to legal privilege.”

It approaches it on that basis in order to meet the argument that you cannot ring fence something which, under the cloak of legal privilege, is in fact furthering a criminal intent. If that is right, it logically follows that clause 25(1), (2) and (3) should not stand as they are currently drafted. New clause 2 is essentially an alternative provision.

In other words, the test in 25(3) of “exceptional and compelling circumstances” is on the one hand welcome, though it is not welcome in a clause that targets legally privileged material that should not be targeted for the reasons I have outlined.

I hope the hon. Gentleman will forgive me for thinking of this as I speak. Is there a risk that we could be unclear as to whether a communication is subject to legal privilege, and think that it is in furtherance of a criminal offence, and then it turns out not to have been? Is there a loophole or lacuna in the legislation that does not cover that eventuality?

There is. That is a very good point, and it is one that I have discussed with the Bar Council. In those circumstances, what is being targeted is material that is not legally privileged, though there might be something that is legally privileged within it. There should be safeguards put around that, and I readily accept that examples will arise, probably also in the bulk powers, in which, although the intention is not to target legally privileged material, it is very difficult to have a warrant which does not run the risk.

An example would be when there is a suspicion that a lawyer and client may be involved in some activity that would take the communication outside of legal privilege, but it is impossible to say at what point of the conversation or exchange it loses its legal privilege. That is an obvious example. The answer that the Bar Council gives to that, and that I agree with, is that in those circumstances, rather than having a warrant to target the legally privileged material, there is a regime that recognises that it may be that, when targeting what can legitimately be targeted—namely, the part of the communication that has lost its privilege—there is a risk that privileged communications are incidentally picked up. There should be a provision for dealing with that material and its disclosure.

The powerful point about subsections (1), (2) and (3) is that it is wrong, in principle, to target legally privileged material. It is possible to have a warrant that runs the risk, with a separate set of safeguards to ensure that, if the risk materialises—as it will in some cases—there are provisions for ring-fencing, safeguarding, and not disclosing that material. That is the intention behind the Bar Council amendment.

It may be that further tweaks or improvements can be made, but that is an important point of principle that I invite the Solicitor General to take away and consider. A clause that satisfied the Bar Council in terms of the legal protection of this important privilege would be a prize worth having. Although the Bar Council recognises, as I do, the movement that the Government have made here, they simply have not got this right, for the reasons that I have outlined.

Subsections (4), (5), (6) and (7) are focused, in a sense, on communications that are likely to include items of legal privilege, such as a warrant that touches on a solicitor or lawyer communicating with clients, where it is thought that privilege has been lost but also elements where it has not been lost. In those circumstances, the Bar Council’s view and my view is that what is set out is again simply not strong enough, because there is no test or special provision.

New clause 2 is a comprehensive clause that would deal with that issue. In a sense, it goes with amendment 80, which amends a much later provision. It is intended to tidy up and clarify what the Bar Council says properly represents legal privilege and a regime for protecting it.

Does the hon. and learned Gentleman not think that there is a special level of safeguard incorporated in the clause? A higher bar needs to be overcome. Only in “exceptional and compelling circumstances” will privilege be circumvented. Is that not a high standard to meet?

I accept that it is a high standard to meet, but it is focused on the wrong target. If it is wrong in principle to target legally privileged material on the basis that that material might involve communications that further crime, on a proper understanding, that material has already lost its legal privilege. Having a higher test to target something that has not lost its legal privilege is a good thing, but it is not enough. Material that has not lost its legal privilege should not be targeted, because it is in fact not furthering crime. The proper way to deal with it is to recognise that what one really wants to target is communications that have lost their privilege. However, there is a risk of including—unintentionally, because one does not want to target it—other material, and that requires a different approach and a different regime. That is really the point. It is good to have a threshold, but the threshold does not work within the confines of this scheme.

I urge the Solicitor General to view the clause in that light and to reflect again on it. A lot of work has been done to try to get it into a better state, but that has not met with the approval of the Bar Council and, following analysis and discussion with the council, I can see why. New clause 2 is the council’s attempt to get it right. It has spent a lot of time on it and is very concerned about it. I invite the Minister to reflect again and commit to looking again at the clause, perhaps with us and the Bar Council, to try to get a clause that meets with the approval of everyone concerned. If that can be achieved, it will be a prize worth having; if it cannot, it will be a waste of a bit of time on a good cause.

Although it comes at a late hour, this is an important debate. We have come a long way on this issue. There was silence as to the presence of legal professional privilege in the draft Bill. The Government have rightly listened to the evidence and have now made important amendments to clause 25.

The nub of the dispute that divides the hon. and learned Gentleman and me this evening is his approach of seeking to define legal professional privilege for the purposes of this legislation. There are inherent dangers in taking an ad hoc approach to defining a particular privilege that is well understood. It might be unintentionally affected by a well-intentioned attempt to seek to define it in the legislation. In other words, putting a well-intentioned gloss on legal professional privilege might have unintended consequences in limiting its ambit, and I do not think anyone would want to do that.

The Government have been careful about the approach to legal professional privilege—I will refer to it as LPP, because I will be referring to it a lot in my remarks. The hon. and learned Gentleman is right to say that the iniquity exception means that that material is not subject to LPP. It is not a qualified sub-category within LPP; the material either is or it is not within the exception. Having dealt with many, many files on behalf of police authorities as counsel instructed to assess whether the iniquity exception applies, I well know how difficult it sometimes is. There will be files that clearly fall within the exception. There will, as hon. Friends have pointed out, be files that are somewhat more unclear, but there is a danger of going down the rather seductive approach advocated by the hon. and learned Gentleman and ending up in a position in which no one would want to be, namely, that somehow for the purposes of the Bill we have affected how legal professional privilege is understood and approached.

The difference between us is this: the Government’s fear is that there will be exceptional cases—I do not think there will be many—in which the iniquity rule is not satisfied, where the material will be of relevant interest to the authorities and would be the appropriate subject for a warrant application with the double-lock mechanism. That is why we are using the phrase “exceptional circumstances”.

I and the Bar Council would like an example of that. If it is being advanced that even where the iniquity exception is not made out—in other words, it is properly legally privileged communications—there none the less may be circumstances in which the privilege yields under the Bill. We need to be clear about the circumstances he envisages. In a sense, he is suggesting that the communications can be targeted once they have lost their quality in cases where the iniquity exception is not made out—in other words, where it is a proper professional exchange between lawyer and client, fully protected until now. We had better have an example. The Bar Council will be very interested, because this issue goes to the heart of the privilege.

I know that the hon. and learned Gentleman has looked at the code, and the example I will give him is the example in the code under paragraph 8.37. I will read it into the record, because this is an important point. The example is:

“An intelligence agency may need to deliberately target legally privileged communications where the legal consultation might yield intelligence that could prevent harm to a potential victim or victims. For example, if they have intelligence to suggest that an individual is about to conduct a terrorist attack and the consultation may reveal information that could assist in averting the attack (e.g. by revealing details about the location and movements of the individual) then they might want to target the legally privileged communications.”

In other words, that is not the furtherance of a crime, because the legal adviser is not hearing or in any way participating in the outline of a plan. There might be information in there that seems to the adviser to be innocent information about the suspected terrorist living in a particular location or associating with particular individuals, but which, because of the surrounding intelligence in the case, may well give a basis for the intelligence agency to target that individual, because the information means more to the agency.

The Minister points to an example that I have discussed with the Bar Council. I must put its view on the record, which is that in those circumstances, there would be an offence if someone was not providing the relevant information about that sort of incident to other than the lawyer. We may need to take this discussion forward in an exchange of letters, with the benefit of what the Bar Council has to say, but in its view that is not a good example for what would be an exceptional incursion into legal privilege. That is why I urge the Minister, rather than batting this back at this stage, to take the opportunity to have further discussions with the Bar Council to get this provision into a form that is acceptable to all.

I am always happy to discuss matters with the Bar Council. As one of the leaders of the Bar, the hon. and learned Gentleman knows that I go to regular Bar Council meetings. I was with it on Saturday, and I listen carefully to what my friends and colleagues at the Bar have to say.

However, the example I am giving explains the situation. There might be information that is entirely innocuous to the lawyer. Let us say that there is a consultation happening. The lawyer might ask a few questions about the address and associates of the person that do not, to him or her, disclose an offence being committed, but which might, in the wider context, provide the security and intelligence authorities with evidential leads that build a wider picture of which the lawyer will be unaware. That is not the furtherance of a crime; it is innocent. What would be innocuous information to the lawyer might mean something more, because a wider context might give the appropriate agency the grounds upon which it could then make its application for warrantry.

There is a distinction. I am not saying that it will be commonplace—far from it. That is why we have worded the terms of the clause very carefully. We talk about “exceptional and compelling circumstances”. I cannot imagine a higher threshold for an applicant to meet than those words.

An additional attraction is that, for the purposes of this legislation, we do not try to define what is meant by legal professional privilege. It is a bit like the argument about parliamentary privilege—the more you to try to modernise and define it, the more it ceases to exist as a meaningful concept. One has to be careful about using vehicles like the Bill to define what is a very wide-ranging principle that applies to myriad circumstances involving lawyers and their clients. Although I am in the spirit of dialogue, that is why I would strongly hesitate before adopting the amendments.

I have listened, with great care, to the submissions made by the hon. and learned Member for Holborn and St Pancras, and I have some sympathy with the position that he has put forward. One of the issues that has consoled me is that any such warrants that are proposed will have to meet the threshold of the double lock, namely the Home Secretary and the judicial commissioner, who, I imagine, will be very careful to protect legal professional privilege. Is my understanding correct?

My hon. Friend sums it up admirably. We have taken a different approach from RIPA, and rightly so. We have listened to the concerns expressed by the wider community, not just members of the profession, and are fully cognisant of the importance of legal professional privilege. It was part of my daily professional life for nearly 20 years so, as a Minister and as a lawyer, I fully understand its importance. Therefore, I hope that the example I have given gives an important insight into what we regard as “exceptional and compelling circumstances”. For those reasons, I urge the hon. and learned Member for Holborn and St Pancras to withdraw the amendment.

I will not take much time. The Solicitor General prays in aid the dangers of over-defining, but the danger of the clause is that it will cut across legal professional privilege. Let us be realistic about what that means: wire taps to listen to privileged legal communications where the iniquity exception does not apply. A lawyer will never again be able to say that a communication—even one within the proper limits of a legal communication—is protected, because there could be no such guarantee. There will always be the possibility that it will not be protected. At the moment, it can be said that as long as it does not fall into the inequity exception, a communication is protected. In the other examples that have been used, it would not be interceptors; it would be bugs in cells. In the end, that is the road that will be opened by this proposal. A lawyer believes that they are having a confidential discussion on proper terms and appropriately with their client, yet that is intercepted. That is why I think the Bar Council feels so strongly about it.

Of course, there is a danger in defining legal professional privilege, but there is a much greater danger in getting to a position where a lawyer can never again say, “I guarantee that, as long as it is within limits, this is a protected communication.” That is at the heart of the Bar Council’s concern. I have said all I need to say. That is the problem.

We have to be careful about this. We have prison rules, for example. The hon. and learned Gentleman and I know that there are already certain prescribed circumstances and scenarios that exist. I am not advocating a coach-and-horses approach that can be taken by authorities who have a cavalier regard for LPP. This is a very prescribed exception. The words “exceptional and compelling” are strong. He paints a nightmare scenario—I know that he does so with genuine concern for a privilege that he and I hold dear—but I think that we are getting the balance right and that what he envisages will not come to pass.

I stand only to give way.

I am grateful to the hon. and learned Gentleman for standing to give way. I was trying to think of circumstances in which legal professional privilege—the relationship between the lawyer and their client—might not be as sacrosanct as the client might expect. For example, if the lawyer considers that there is a risk that their client is involved in money laundering, even if they are not, there are circumstances in which that right is circumscribed. That might not be a perfect example, but we are in the territory of there being the risk of great harm or wrongdoing and evidence that persists of that.

I am grateful for the intervention, and I recognise that point. The concern is that, if passed in this form, the Bill will allow interception where there is no question of the inequity exception. Perfectly lawful, proper, appropriate communications between lawyer and client, which are fully protected and recognised in all other circumstances, would come within the scope of an intercept warrant.

At this stage—particularly at this hour—I will not press the point. I urge the Solicitor General to keep at least a residual open mind, so that if a better version of the new clause can be tabled at a later stage, which meets some of the concerns he has outlined, he might look at the proposal again. As I say, this is an issue of real concern to the profession. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 25 agreed to.

Clauses 26 to 29 agreed to.

Ordered, That further consideration be now adjourned. —(Simon Kirby.)