I beg to move amendment 141, in clause 68, page 54, leave out lines 3 to 13 and insert—

“( ) An application for an order shall be made on notice to the journalist or journalists affected unless the Judicial Commissioner determines that an application without such notice is required in order to avoid prejudice to the investigation.

( ) Paragraphs 7 – 9 of Schedule 1 to the Police and Criminal Evidence Act 1984 shall apply in relation to the service of a notice of application for an order under subsection (1) as if the application were for an order under Schedule 1 Police and Criminal Evidence Act 1984.

( ) Criminal Procedure Rules may make provision about proceedings under this section where the Judicial Commissioner determines that an application without such notice is required.

( ) A Judicial Commissioner may only make an order if the person making the application has convincingly established that—

(a) the order is directed to one or more of the legitimate aims specified in Article 10.2 of the Convention, and

(b) there is an overriding public interest necessitating the order, and

(c) reasonable alternative measures to the order do not exist or have been exhausted, and

(d) the order is proportionate to the legitimate aim or aims being pursued.

( ) The costs of any application and of anything done or to be done in pursuance of an order made under it shall be in the discretion of the Judicial Commissioner

How journalistic material and in particular journalists’ sources are to be protected under part 3 of the Bill is a substantive issue of real importance in a modern democracy.

“Issues surrounding the infringement of the right to freedom of expression may arise where an application is made for the communications data of a journalist. There is a strong public interest in protecting a free press and freedom of expression in a democratic society, including the willingness of sources to provide information to journalists anonymously.”

Those strong statements of principle that underpin our democracy are agreed across this House. I say that with confidence not only because of the strong public interest, but because they are written into the code of practice at paragraph 6.5. That suggests they are shared and important democratic principles. I argue that that expression of principle is not translated into reality in the provisions of the clause or through the Bill, and the clause is of considerable concern.

Let me give the background, as there is a chequered history. It is now clear that, in the case of Tom Newton Dunn, the police used the Regulation of Investigatory Powers Act 2000 to access his phone records in secret in 2014. They did not notify him that they had accessed his material or sources; the Metropolitan police obtained the phone records without notification or consent. In other RIPA cases, no journalists were informed in advance. The Interception of Communications Commissioner highlighted in a report in February 2015 that 19 police forces had accessed the communications data of 82 journalists using RIPA in that way. The point of real importance is that there is no fundamental difference between the authorities asking for a journalist’s physical contact book and footage or for their telephone and communications records; the effect on journalists and sources is exactly the same and the same legal safeguards must apply to both.

The safeguards in the Police and Criminal Evidence Act 1984 set a higher standard than those in the Bill as it stands. Under PACE, journalists are notified when the authorities want to access their material and sources, and they have the ability to defend their sources. Neither RIPA nor the Bill apply the same protections and safeguards. The RIPA interim codes of practice, published in March 2015, stated that the authorities must use the PACE procedures to apply to the court for a production order to obtain data. The Bill fails to meet that test.

Let us consider clause 68 against that background. It applies if the purpose of the authorisation is

“identifying or confirming a source of journalistic information”.

The clause applies where the purpose is to get at protected material. My first point is that there is no provision in the clause for protection when the purpose of the authorisation is not to identify or confirm a source but that may happen incidental to other authorisations or applications. That is a huge gap in the protection.

Secondly, under subsection (4),

“the applicant is not required to give notice of the application to— any person to whom the authorisation relates, or that person’s legal representatives.”

So unlike the PACE provision, there is no notice provision.

Then, in subsection (5), although there is a requirement for a judicial commissioner to approve an authorisation, the test is very weak and low level. It is that

“the Judicial Commissioners considers that— at the time of the grant, there were reasonable grounds for considering that the requirements of this Part were satisfied in relation to the authorisation”.

All the judicial commissioner is deciding when a journalist’s source is being targeted is the requirement of this part of the Bill that there are reasonable grounds. On reasonable grounds, the judicial commissioner may think not that the requirements were satisfied, but that there were reasonable grounds for thinking so, and there is no test. There is no higher test for journalistic sources. All the judicial commissioner must satisfy himself or herself of is that the test that applies generally has been applied. It is difficult to see, unless I am reading this wrongly, what the test adds other than that the judicial commissioner looks at the matter, because all they have to look at is whether the other tests not relating to journalists have been satisfied. That is a good thing, but it is hardly a higher level of protection for journalists.

Going back to the code of practice, the last sentence of paragraph 6.5 is very powerful. It states:

“Where an application is intended to determine the source of journalistic information, there must therefore be an overriding requirement in the public interest”.

That is a strong statement of principle that is not found in clause 68 or elsewhere in the Bill. If that is the test to be applied, it is the test that should be written into the Bill and applied by the designated senior officer, and it is the test that the judicial commissioner should be satisfied is passed. The commissioner does not have to ask himself or herself that question. The provision is disguised as protection for journalists but does not provide them with any protection at all.

The code of practice deals with the situation when the application is for the communications data of a journalist generally but is not intended to determine the source. Again, there is nothing on that in the Bill. All the Bill does is to have a title suggesting protection for journalists and then a test that just ensures that the other provisions of the Bill that are not specific to journalists are applied. It leaves out the vital test in the code of practice and set out in case law, which is too great to start going through at this stage. The clause is fundamentally deficient when it comes to protection for journalists.

I am trying to think how this will work in practice. Under the usual rules for a non-notice application, to show that it will be without notice it would be necessary to highlight a number of factors of history as to why it should be without notice rather than on notice—for example, fraud or historical events. In this case, what would the circumstance be that would make it without notice rather than on notice? There would be a significant risk that any journalist would take action. What evidence could be put to the judicial commissioner to persuade them that this should be a without-notice application? There would be no history on the journalist himself.

I am grateful to the hon. and learned Lady for that intervention. As she will know, there is a 20 to 25-year history of the evolution of protections for journalists, from the point when they were not put on notice to the point when they are now routinely put on notice. There are exceptions that have been tested in the Court of Appeal, but journalists are pretty well always put on notice and on many occasions will go and argue their corner to protect their source. Over the years, the case law has determined what the proper test is; on some occasions it has protected the source and on others it has allowed access. Under the PACE regime, there is now a clearly established way to proceed in cases in which journalists’ sources are an issue. It is well understood and it works well. It is significant that none of the law enforcement bodies to my knowledge are complaining that the on-notice PACE procedure for obtaining material that relates to journalists’ sources is not working in practice. Having battled it out over 25 years, pretty well all the sides accept that the current arrangement represents and protects their interests.

The amendment would essentially apply the same regime to communications data where communications data has been retained and is now being accessed. In the modern world, as journalists have made absolutely clear, to say that authorities have to go via PACE when they want to get a physical address book with a source in it but not when they want the virtual version through comms data is to cut right through the protection that has been so carefully crafted over the last 20 to 25 years. That does not protect journalists’ sources and is a cause of real concern.

Amendment 141 reflects current practice by providing for exceptional circumstances in which applications do not have to be on notice, whereas the Bill simply does not offer journalists any meaningful protection whatever. It is a carefully thought through, constructive amendment, intended to give journalists the protection they need without thwarting an investigation that needs to be protected. The test in paragraph (b) of the fourth subsection of the amendment puts the code of practice into the Bill. There is then a provision on costs.

The amendment is simple: it preserves PACE protections and extends them to communications data. It sets out the right test for the designated senior official and the judicial commissioner to apply. Nobody can quarrel with the test, because it is taken from the code of practice itself. It is all very well having warm words in the code of practice and warm words, which we have heard many times, about the protection of journalists’ sources, but unless they are translated into something that has real bite and effect, they remain warm words. I do not say that to underplay what the Solicitor General will say. I know that he believes in the underpinning principles I have outlined, but history shows that unless protection for journalists is written into legislation in a meaningful and effective way, it will not apply in practice as it should.

I thank the hon. and learned Gentleman for clearly outlining the kernel of his concern about the way the clause is drafted. Although in the drafting of the clause we have tried, quite properly, to address what is a sensitive occupation—I hesitate to use the word “profession” because some journalists do not like to be described in that way—we are in danger of moving the focus away from the public interest that journalists serve, which is freedom of expression in a democratic society without fear of intrusion by the authorities and in a way in which sources, and the journalists themselves, can be protected. We have to draw a very important distinction. It is tempting to try to draft amendments dealing with journalists in an ad hominem, or group, way. However, we are not talking about that; we are talking about the source material. Therefore, in a nutshell, I am afraid that the amendment does not really deal with the essential public interest, and that is why I commend the Government’s approach to the Committee.

I will say to the hon. and learned Gentleman, by way of reassurance, that if we can do better in the code of practice, we will. I am certainly open to active consideration of the ways in which we can improve the drafting to make the principles of freedom of expression, and the points that he and I agree on, even clearer to those applying these rules.

The Solicitor General is resisting this sensible and constructive amendment, which reflects the PACE approach, on the basis that one should not get too specific and one needs to understand the underlying public interest. He must accept that the points he makes apply equally to the PACE test. It does not matter whether someone is physically seizing a document that reveals a source or seizing something that serves virtually the same purpose. He must accept that the test is working well in practice and that all sides are pretty content with the way it works at the moment.

I am grateful to the hon. and learned Gentleman, but, tempting though it is to draw that comparison, I think that he is mistaken. The PACE code of practice focuses on the person who, as it appears to the judge, is in possession of the material. That is not always the journalist; for example, a journalist’s material in regards to comms data will be held by the communication service providers and not by the journalist. Under PACE, journalists are not notified in such cases.

Will the Solicitor General give way?

I will not give way at this stage because I want to explain the position. I have given way repeatedly and I want the chance to make my argument. I am sorry if people think, for some reason, that I am not listening or being reasonable. I need to explain the case because I do not think that it has been fully understood.

The hon. and learned Gentleman is right to talk about the position under PACE whereby journalists are asked to surrender data, such as in notebooks; however, under RIPA and the PACE procedures, applications are already being made to others in possession of material, journalists are not notified and the principles are very clear. I do not think it is right of him to draw such an easy comparison and to say, “It is working for PACE, therefore it should be read across the provisions of the Bill.” That is comparing apples with pears—with respect to him.

I have obviously looked carefully at what the Government said in the past on this issue and what was said in response to the pre-legislative Committees. The point has been made that, on the one hand, it is seizing from the journalist themselves and on the other hand, it is seizing from the person who holds the data; that is a material difference and we cannot compare the two schemes. I wonder whether that withstands proper scrutiny. The whole point is to give a source confidence that they can come forward and tell a journalist something and they will be protected. Otherwise, all the case law recites the fact that sources will not come forward and wrongdoing will not be exposed, which is unhealthy for democracy.

The argument that, if you seize my name in physical form from a journalist, it is to be protected, but if my name is being held by a data holder it can be given up and does not require protection, defies common sense. For the source, the question is: what is the protection for me if I come forward and try to expose someone? The argument that you are fine if it is written in a notebook and held by the journalist, but you are not protected if it finds its way into a bit of data held by someone else does not hold up.

Yes, but with respect, the hon. and learned Gentleman is ignoring the function of this clause, which is that where you do have that list, we have a special procedure. The problem with that argument is that there is a sensitive issue here. Where someone—whether they are a journalist or not—is the subject of a legitimate investigation, that could undermine such an investigation. Getting the balance right is therefore very important—[Interruption.] I want to finish this point. That is why, both in the Bill and this clause, special procedures apply where the sort of mischief about a source being compromised is indeed a live issue.

In amendment 141, which the Solicitor General is resisting, we have deliberately and intentionally accommodated the test that notice need not be given where it is necessary

“in order to avoid prejudice to the investigation.”

He has given a powerful example, but we have catered for that by saying that notice does not need to be given in that instance. The norm is that notice is given in the usual way, but the exception is where there is prejudice to the investigation. That absolutely meets his concerns; but it does meet my point that notice should otherwise be given.

I am glad we both note that we are trying to get to the same objective. I have already said to the hon. and learned Gentleman that the combination of legislation and the code of practice will be the way in which this framework is set out. I have indicated that if we can do better on the code of practice, we will; we will work with him on that. I also reiterate the amount of care that my right hon. Friend the Minister for Security and I are taking on this particular issue. We have met with leading representatives from journalism on three occasions to discuss the Bill. We have written to the National Union of Journalists and the News Media Association about the concerns they have raised. This is part of a dialogue that is very much ongoing about the protections afforded by the Bill to journalistic material. They rightly say to us that it is not about them but about the interests that they serve. I cannot reiterate enough that we must focus on that issue when drafting the legislation.

May I deal with other Members who have considered the issue? The Interception of Communications Commissioner carefully considered it last year. He made it clear in his recommendation that, where communications data are sought that do not relate to investigation to determine the source of journalistic information, then judicial authorisation is not necessary. I know that the hon. and learned Gentleman is trying in effect to replicate that carve-out. On the proposed restrictions on the circumstances in which a communications commissioner may approve the obtaining of communications data that are journalistic in nature, where the request is for one of the legitimate aims in article 10.2 of the convention, there is an overriding public interest necessitating the order and the order is proportionate to the legitimate aim or aims being pursued, we already have the concepts of necessity and proportionality under part 3 as spelt out in the draft code of practice—as indeed they are in the code of practice for existing legislation. We already have a tightly-constrained framework here, which offers a high degree of reassurance to all of us who care passionately about these issues, as I do. The Investigatory Powers Tribunal has been clear in recent authority, such as the case of News Group Newspapers Ltd and others v. Metropolitan Police Commissioner in December last year, that the 2015 code of practice drafted under the current provisions and replicated in the regime in the Bill meets the standards on freedom of expression set out in article 10.

On the proposed requirement for a judicial commissioner to ensure that all reasonable alternative measures to such an authorisation have been exhausted, I am afraid that in my view, there are problems with its practicability. There are many reasons why a particular approach to an investigation might be selected and the use of a particular power might be called for. Judicial commissioners, with respect to them, are not the experts in this consideration and should not be expected to be. It is for those with expertise in the range of investigative options available in the particular circumstances of the case to decide that. Then, of course, the tests can be applied.

I do not want to take technical points. With regard to the technicalities of the amendment, there are some drafting issues that would need to be worked on, but I accept that it is really about principle and the approach to be taken. At this stage, although I disagree with the means by which the hon. and learned Gentleman seeks to make the change, continuing dialogue on the issue is meaningful. For those reasons and in that context, I respectfully ask him to withdraw the amendment.

I have listened carefully to the Solicitor General. In the end, it boils down to a matter of principle. I think that he accepts what amendment 141 says in proposed new subsections (a), (b), (c) and (d). He criticises (c), but I will not spend time on that. The most important thing is to establish that the order is directed to one or more of the legitimate aims in article 10.2 and that an overriding public interest makes it necessary. He says that that is the framework within which the decisions should be taken, so there is no disagreement between them.

The difference, then, appears to be simply that I say it should be on the face of the statute and clear to all, and he says, “No, it can be in a code without express reference in statute.” There is a problem in principle with that. Protection of journalists’ sources should be on the face of the Bill. That is important in a modern democracy. For the Bill to be silent about the test, and for only the code of practice to apply it, is wrong in principle.

Secondly, I am afraid that there is a test spelled out in the Bill, and it is inconsistent with that test. The test for the judicial commissioner in the Bill is simply to check that there were reasonable grounds for considering something, but that the other requirements in the provisions were complied with. As a matter of statutory construction, the judicial commissioner is bound to apply the test in the Bill and cannot apply any other test, so it is wrong in principle not to put it in the Bill. It is also problematic, because there is a test in the Bill and it is not a special test. Ultimately, it says that the judicial commissioner must ensure that the other provisions of the Act are complied with. We would expect that; it is hardly an enhanced test by anybody’s standards.

In those circumstances, I am afraid that the Solicitor General’s arguments are wholly unpersuasive. I will withdraw the amendment, partly because I think that there is room for improvement, on which I will certainly work with the Government. To be absolutely clear, partly because I want to reserve my position to propose the amendment at a later stage, as it is of such importance to the Bill, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment 142, in clause 68, page 54, line 5, leave out from “data” to “and” on line 7 and insert “further to this Part”.

With this it will be convenient to discuss the following:

Amendment 143, in clause 68, page 54, line 18, leave out “considers” and insert “determines”.

Amendment 144, in clause 68, page 54, line 19, leave out subsections (5) (a) and (b) and insert—

‘( ) that the conduct permitted by the authorisation is necessary for one or more of the purposes in section 53(7); and

( ) that the conduct permitted by the authorisation is proportionate to what is sought to be achieved by that conduct.”

Amendment 145, in clause 68, page 54, line 29, leave out subsection (7) and insert—

‘( ) The Investigatory Powers Commissioner may for the purposes of approving authorisations under this Section appoint Deputy Judicial Commissioners.

( ) A “Deputy Judicial Commissioner” must be—

(a) in relation to England and Wales, a justice of the peace,

(b) in relation to Scotland, a sheriff, and

(c) in relation to Northern Ireland, a district judge (magistrates’ courts) in Northern Ireland.

( ) An authorisation under this Section may not grant authorisation in relation to the obtaining by a relevant public authority of communications data—

(a) 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.

( ) 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.

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

( ) A Judicial Commissioner may issue an authorisation sought under subsection (3), if satisfied that—

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

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

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

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

(e) it is in the public interest that the authorisation is granted, having regard to—

(i) the benefit likely to accrue to the investigation and prosecution if the data 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,

( ) 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.

( ) Where an authorisation issued under this Part would seek to authorise any activity which may involve access to special procedure material, the following subclauses apply.

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

(a) journalistic material other than material which a person holds in confidence and

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

( ) The special procedure authorisation may only be granted on application to a Judicial Commissioner.

( ) The Judicial Commissioner must be satisfied that there are reasonable grounds to believe 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—

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

(ii) the importance of the prosecution,

(iii) the importance of maintaining public confidence in the integrity of journalists’ work product, and/or communications with members of relevant legislatures and

(iv) the public interest in the freedom of expression enjoyed by journalists and the members of the relevant legislatures, including as protected by Article 10 ECHR.

( ) Where data could reasonably be obtained by means of a search and seizure order pursuant to the Police and Criminal Evidence Act 1984, a warrant under this Part will not be in the public interest.

( ) An application for an authorisation concerning journalistic material held in confidence or information for the purpose of identifying or confirming a source of journalistic information, may only be considered by the Investigatory Powers Commissioner, who must be satisfied that there are reasonable grounds to believe—

(a) a criminal offence has been committed,

(b) the communications data 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 authorisation is granted, having regard to—

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

(ii) the importance of the prosecution;

(iii) the importance of maintaining public confidence in the integrity of journalists’ work product and

(iv) the public interest in the freedom of expression enjoyed by journalists and the members of the relevant legislatures, including as protected by Article 10 ECHR.

( ) In considering an authorisation concerning journalistic material held in confidence, the Investigatory Powers Commissioner must give notice to the journalist concerned, unless it would not be in the public interest to do so.

( ) If an authorisation is considered without notice, the Investigatory Powers Commissioner must appoint a Special Advocate to represent the interests of the journalist and the person to whom confidence is owed, and the wider public interest in the integrity of journalists sources and freedom of expression, including as protected by Article 10 ECHR.

( ) Journalistic material is held in confidence for the purposes of this section if—

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

(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.”

Amendment 242, in clause 68, page 54, line 29, leave out subsection (7) and insert—

‘( ) The Investigatory Powers Commissioner may for the purposes of approving authorisations under this Section appoint Deputy Judicial Commissioners.

( ) A “Deputy Judicial Commissioner” must be—

(a) in relation to England and Wales, a justice of the peace,

(b) in relation to Scotland, a sheriff, and

(c) in relation to Northern Ireland, a district judge (magistrates’ courts) in Northern Ireland.

( ) An authorisation under this Section may not grant authorisation in relation to the obtaining by a relevant public authority of communications data—

(a) 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.

( ) 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.

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

( ) A Judicial Commissioner may issue an authorisation sought under subsection (3), if satisfied that—

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

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

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

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

(e) it is in the public interest that the authorisation is granted, having regard to the—

(i) benefit likely to accrue to the investigation and prosecution if the data is accessed;

(ii) importance of the prosecution; and

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

( ) 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.

( ) Where an authorisation issued under this Part would seek to authorise any activity which may involve access to special procedure material, the following subclauses apply.

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

(a) journalistic material other than material which a person holds in confidence;

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

( ) The special procedure authorisation may only be granted on application to a Judicial Commissioner.

( ) The Judicial Commissioner must be satisfied that there are reasonable grounds to believe 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;

(iii) importance of maintaining public confidence in the integrity of journalists’ work product; and

(iv) public interest in the freedom of expression enjoyed by journalists and the members of the relevant legislatures, including as protected by Article 10 ECHR.

( ) In considering an authorisation concerning journalistic material held in confidence, the Investigatory Powers Commissioner must give notice to the journalist concerned, unless it would not be in the public interest to do so.

( ) If an authorisation is considered without notice, the Investigatory Powers Commissioner must appoint a Special Advocate to represent the interests of the journalist and the person to whom confidence is owed, and the wider public interest

( ) Journalistic material is held 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 proposes special procedures for communications data, subject to legal professional privilege, and for the protection of journalistic material and the communications data of politicians. It also provides for the Investigatory Powers Commissioner to appoint Deputy Judicial Commissioners to consider applications for the authorisation of access to Communications Data.

New clause 14—Authorisations in relation to items subject to legal privilege—

‘(1) Subsections (2) and (3) apply if—

(a) an application is made by or on behalf of a relevant public authority for authorisation under this Part, and

(b) the purpose, or one of the purposes, of the authorisation is to obtain communications data which contains, or might tend to reveal the content of, items presumptively subject to legal privilege.

(2) The application must contain a statement that the purpose, or one of the purposes, of the authorisation is to obtain communications data which contains, or might tend to reveal the content of, items presumptively subject to legal privilege.

(3) The person to whom the application is made may grant the authorisation only if the person considers—

(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 acquisition of the communications data in question, and

(b) that the relevant public authority has made arrangements of the kind described in section 46 (safeguards relating to retention and disclosure of intercepted material), including specific arrangements for the handling, retention, use and destruction of such items.

(4) Subsections (5) and (6) apply if—

(a) an application is made by or on behalf of a relevant public authority for authorisation under this Part,

(b) the relevant public authority considers that the relevant communications data is likely to include communications data which contains, or might tend to reveal the content of, items subject to legal privilege, and

(c) subsections (2) and (3) do not apply.

(5) The application must contain—

(a) a statement that the relevant public authority considers that the relevant communications data is likely to include communications data which contains, or might tend to reveal the content of, items subject to legal privilege, and

(b) an assessment of how likely it is that the relevant communications data will include communications data which contains, or might tend to reveal the content of, such items.

(6) The person to whom the application is made may grant the authorisation only if the person considers that the relevant public authority has made arrangements of the kind described in section 46 (safeguards relating to retention and disclosure of material), including specific arrangements for the handling, retention, use and destruction of any communications data which contains, or might tend to reveal the content of, items subject to legal privilege.

(7) Subsections (1) to (6) of section 68 (commissioner approval for authorisations in relation to journalistic sources) apply to an authorisation to which this section applies as they apply to an authorisation in relation to the obtaining by a relevant public authority of communications data for the purpose mentioned in subsection (1)(a) of that section.

(8) In this section “relevant communications data” means any communications data the obtaining of which is authorised by the authorisation.”

Although there are numerous amendments, they will not take as long as the previous amendment, because to some extent they cover the same ground. Amendments 142 to 144 are intended to tighten up the test for journalistic material and apply a stricter test. Amendment 145 is an attempt comprehensively to redraft clause 68 to provide meaningful protection for journalist material and the protection of journalist sources. It is also an attempt to provide protection for other protected information, namely that which is subject to legal privilege and communications between MPs. This is a form that we have seen on previous occasions.

I invite interventions because I cannot now quite remember, but I do not think that in this part of the Bill there is a self-standing provision for MPs in relation to access to data. I will happily be intervened on if I am wrong, because then this would not apply. My concern when drafting this amendment was that, while in other parts of the Bill there is a specific provision—although we can argue about whether it is strong enough—for MPs’ correspondence in relation to accessing the communications data of MPs, there is no provision at this point in the Bill. That should be a cause of concern to everyone on the Committee, and it will certainly be a cause of concern to others.

I am grateful to the hon. and learned Gentleman for the typically clear and concise way in which he has approached these amendments to clause 68, on which I wholeheartedly support him. On the question of protection for parliamentarians, the wording that has been used is a “relevant” parliamentarian. That will cover Members of the Scottish Parliament and the devolved Assemblies as well.

I am grateful for that. On looking at it, it is clear that clause 94 applies generally across this—actually, I am not sure that it does. I am sorry, Madam Chair, to pause on this.

Perhaps I could assist the hon. and learned Gentleman. The phraseology that is used is “a member of a relevant legislature”, which is defined to include the Scottish Parliament and the devolved Assemblies.

I am grateful for that. The purpose of the amendment is really to cover all three protected areas—legal professional privilege, MPs’ correspondence and journalism—and to set out a comprehensive test for all three. It is similar to a provision that we have already looked at in relation to other parts of the Bill. I commend it as a constructive way to protect the interests that ought properly to be protected on the face of the Bill.

May I be brief and succinct? I will not revisit the arguments except to say that there are important differences between the regime for communications data and that which is contained within clause 94, for example, which deals with equipment interference. We will come on to that in due course. I remind the hon. and learned Gentleman that paragraph 6.4 of the code of practice contains specific reference to a number of sensitive occupations, including,

“medical doctors, lawyers, journalists, Members of Parliament, or ministers of religion”.

If there is any lack of clarity in the code as to whether this includes Members of the Scottish Parliament or indeed of other devolved institutions, I am sure that that could be cleared up, and it should be.

Will the Solicitor General give way? My point is not about the definition of parliamentarians but on the question of legal professional privilege. I think I am right in saying that the Government do not currently recognise that comms data come within the definition of legally privileged material. Does he not agree with me that a phone call from or to a lawyer could, for example, identify a potential witness in a case, and therefore comms data should come within the definition of legal professional privilege?

I do not want to go back to arguments that we have already had on this or to anticipate any future arguments. With regards to legal professional privilege, sometimes it might be difficult to establish precisely what comes within and without that category. However, we are talking not about the content of what has been said or done but about the fact of a communication having been made, so communications data will rarely, if ever, attract legal professional privilege; it is difficult to think of an example when it would.

I think the guidance that we are given in declaring our interests to the House is that, for legal work, the identity of the person advised is not to be disclosed, because that comes within legal professional privilege. In other words, the fact that somebody has sought advice and who has sought advice are protected by legal professional privilege. I have never known there to be any doubt about that. This is an area where there is a need for special protection; that ought to be in the statute. I think that is common ground. That is how I have always understood it. I am not entitled to say who instructs me without the consent of the client, certainly before the matter comes to court.

While I agree with the hon. and learned Gentleman on the principle and the absolute nature of the privilege—subject to the iniquity exemption that we all know about and those of us who practise are familiar with—I am talking about a restricted area, in which we are looking at the threads of an investigation as opposed to the actual meat of the subject.

Will the Solicitor General give way?

May I just deal with this matter? As I said, I am having difficulty identifying a circumstance in which communications data—material without context or wider information—would attract that protection. In what we call the David Davis and Tom Watson case, which has been referred by the Court of Appeal to the Court of Justice of the European Union, in its judgment the court of first instance, the divisional court, said:

“No doubt such an example of privilege would rarely arise.”

I think it is important to note that, while I am not saying that it would never arise, I am having difficulty in imagining that the material itself would breach the dam, if you like, of the important safeguard of legal professional privilege.

Just in response to the hon. and learned Gentleman’s point about the identity of the person being subject to legal professional privilege: in litigation it is always known, because the solicitor is on the record as to who he acts for, and at a case management conference the barristers who are taking the matter forward will be identified.

I am grateful to my hon. and learned Friend. There might be an earlier stage, for example at a police station in a criminal investigation, when that might not be a matter that is automatically disclosed in that way.

I absolutely accept that, for litigation in open court, it is pretty clear who everybody is acting for. It is common practice in the commercial world for protection to be put around whether a client is seeking advice and from whom. That is jealously guarded by every law firm that I have ever had anything to do with, for very obvious reasons. People go to lawyers; they do not necessarily want the world at large to know that they have gone and to which lawyer they have gone. I cannot over-emphasise that, in the commercial reality of the real world, that is jealously guarded.

I am grateful to hon. Members for trying to sift their way through what appears to be something of a labyrinth at times. I do not want to overcomplicate the situation. The Government’s view is that, combined with the code of practice, we have the necessary protections in the Bill that acknowledge that the degree and nature of the interference in an individual’s rights and freedoms will of course be greater in these sort of circumstances, so considerations of the necessity and proportionality become highly germane because they draw attention to any such circumstances that might lead to an unusual degree of intrusion or infringement of rights and freedoms, in particular privacy.

The Solicitor General is very generous in taking interventions. We currently have four silks arguing about whether LPP can apply to comms data. Too many lawyers spoil the broth perhaps, but is that not an indication that a code of practice is not going to be enough to resolve this issue? It should go before a judicial commissioner, as proposed by the amendment.

The hon. and learned Lady makes her point with force. Although the concerns she has about content and the issues that we have debated and will debate in part 5 are understandable, we are talking about a different nature of material and a different regime, where considerations can be distinct from those that apply in other parts of the Bill.

I will deal as quickly as I can with the points that have been made. I would argue that we have, in effect, a particular restriction that I would regard as not striking the right balance with respect to those who need it. We have to think in the context of the operational capability of our security and intelligence services in particular.

If there is a specific requirement for the use of PACE powers in these circumstances, I am worried that the requirements of clarity, consistency and transparency that we have to abide by will be undermined. The Interception of Communications Commission was clear in its rejection of the claim that public authorities had utilised RIPA to avoid the use of PACE. In fact, under this Bill part 3 authorisations for communications data to identify or confirm a journalistic source are subject to more stringent safeguards than under PACE, because the Bill replicates those procedures but at a higher level of authorisation, with a serving or former High Court judge, as opposed to a circuit judge, making the authorisation.

Making communications data accessible to those who have a lawful need for them at the right level of authorisation is a fine balance, but it is struck most effectively in the Bill as drafted. I am sure that Opposition Members do not intend us to reach a position where communications that have been made for the intent of furthering a criminal purpose are missed or are not accessible as they would want them to be. For those reasons, I urge the hon. and learned Member for Holborn and St Pancras to withdraw the amendment.

I am afraid I simply do not follow the argument that transparency and accountability are lost if the protection that should properly be accorded to lawyers, journalists and MPs is spelled out in the Bill, with clear guidance to those who operate the authorisations on how to apply them. As I have indicated, these are matters of real concern that go to important issues in the Bill. In order to reserve my rights at a later stage, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 68 ordered to stand part of the Bill.

Clause 69