I beg to move amendment 504, in clause 135, page 108, line 12, after “items”, insert “presumptively”.

With this it will be convenient to discuss the following:

Amendment 505, in clause 135, page 108, line 14, at end insert “and

(c) where paragraph (b)(i) applies, 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 or require the selection for examination of those items.”

Amendment 509, in clause 135, page 108, line 22, leave out from “privilege” to end of line 25

Amendment 510, in clause 135, page 108, line 26, after “item”, insert “presumptively”.

Amendment 511, in clause 136, page 108, line 40, at end insert—

‘(3) Section 25 (items subject to legal privilege) applies in relation to an application for a bulk interception warrant as it applies in relation to an application for a targeted interception warrant.”

Amendment 512, in clause 171, page 133, line 38, after “items”, insert “presumptively”

Amendment 513, in clause 171, page 133, line 40, at end insert “and

(c) where paragraph (b)(i) applies, 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 or require the selection for examination of those items.”

Amendment 517, in clause 171, page 134, line 2, leave out from “privilege” to end of line 5

Amendment 518, in clause 171, page 134, line 6, after “item”, insert “presumptively”

Amendment 519, in clause 172, page 134, line 17, at end insert—

‘(2) Section 100 (items subject to legal privilege) applies in relation to an application for a bulk equipment interference warrant as it applies in relation to an application for a targeted equipment interference.”

These provisions deal with legal privilege, which we have dealt with on a number of occasions. I will not repeat the points I have made, but one concern I had about the previous clauses that dealt with legal privilege, among others, was that they distinguished between a situation in which the purpose was to obtain the legally privileged material and a situation in which the relevant communication likely to be included was subject to legal privilege. In other words, there was a situation in which the legally privileged material was deliberately targeted and a situation in which there was no intention deliberately to target legally privileged material, but it was accepted that what was targeted was likely to include such material.

In clause 25, the first time we looked at the matter, the distinction was important because the higher test in the Bill—exceptional and compelling circumstances—applied only to the situation in which legally privileged material was purposely targeted, and that test did not apply where it was not being targeted, but it might none the less be picked up because the items targeted would be likely to include material subject to legal privilege. I was uncomfortable with that distinction and I made my submissions at the time.

Curiously—this is understandable; it is not a criticism of different drafting hands in different parts of the Bill—when we get to clause 135, we have a version of the legal privilege provision that sets out in subsection (1)(b)(i) and (ii) both the purpose being to intercept or to obtain legally privileged material and the situation in which the use of the relevant criteria is likely to identify such items, so it sweeps up the targeted and the incidental, and then subjects both to the higher test.

For all the reasons I have set out, I do not think even that is enough, but when the Solicitor General looks again at all the provisions on legal privilege, I ask him to note that there is not even consistency through the statute, perhaps because it was differently drafted at different times. I cannot work out why under clause 25 incidental legally privileged material is not subject to the special test, but under clause 135 it is. I want to put that on the table and invite the Solicitor General to bear it in mind if he gives further consideration to how legally privileged material will be dealt with consistently through the Bill.

I thank the hon. and learned Gentleman for his remarks. First, we have the exceptional and compelling circumstances test in subsection (3)(b), which is consistent. Also, I think there is a slight misunderstanding about what we are dealing with, because the amendments seem to be predicated on the basis that targeted interception and equipment interference and then their bulk equivalents can be directly equated, but they cannot.

We have safeguards in place that we would say are strong. We are having a debate about that; I entirely concede that point. We are having a debate about items subject to legal profession privileges in circumstances where content collected under a bulk interception or equipment interference warrant is being selected for examination. That is the key stage. Before that, we are dealing with the stage of acquisition, not examination.

I am not sure that the Solicitor General is right; if he is, I apologise. This is a safeguard for a bulk warrant that allows for both gathering and access. In other words, the whole point—I go back to the beginning of part 6 of the Bill—is for a scheme that provides for the obtaining of interceptions on a bulk basis and their examination. They are dealt with in part 6. The warrants that are referred to would include an examination warrant.

May I correct myself? The hon. and learned Gentleman is right. I think I used the word “acquisition”. What I meant is that we are talking about when content collected under the terms of part 6, through an interception or equipment interference warrant, is being selected. The stage point about selection for examination is still important.

When content is being selected for examination for the purpose of identifying items subject to legal privilege, or selections such as under the distinction that we have discussed, clause 135, relating to the bulk interception provisions, is the relevant clause, together with clause 171, which deals with equipment interference provisions. That action requires approval from a senior official in the warrant granting department, only on the basis that they are satisfied that there are specific safeguards in place for the handling, retention, use and destruction of items that are subject to legal privilege. In addition, in circumstances when selection for examination is taking place for the purpose of identifying items subject to legal privilege, the senior official must be satisfied that the exceptional and compelling circumstances test that we have discussed is applicable. Furthermore, when an item that is subject to legal privilege is intercepted under a bulk interception warrant and is then retained following its examination, the investigatory powers commissioner must be informed of course.

My point about collection, and I think the hon. and learned Gentleman gets it, is that meaningful safeguards must be applied at that key point, because one does not know what one is getting. That is the wording, and that is why there is that difference in clause 135.

I intervene only to say that I accept that it is a necessary evil of bulk powers that otherwise protected information will come within the bulk power at the point of retention, for want of a better word. Safeguards for MPs, for journalists and their sources, for constituents and for clients bite at the later examination or access point.

I am extremely grateful to the hon. and learned Gentleman. A lot of the material that is collected will never be examined. The key point is the next stage.

Briefly, the other amendments relate to the arguments about legal professional privilege, and the question whether there are circumstances in which material would not be covered by the iniquity exemption but would be of interest. We have discussed that point before, and I draw my remarks to a close on the same terms that we have discussed previously.

In the circumstances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question put, That the clause stand part of the Bill.

The Committee divided:

Ayes 9, Noes 2.

Question accordingly agreed to.

Clause 135 ordered to stand part of the Bill.

Clause 136