I beg to move amendment 870, in clause 225, page 177, line 11, at end insert—

‘(a) an advocate,

(b) a barrister,

(c) a solicitor.’

This amendment provides a definition of a “professional legal adviser” relating to use of the term in clauses 25, 100, 135 and 171.

I am grateful to the Law Society of Scotland for drawing my attention to the necessity of this amendment. When we debated the clauses on legal professional privilege—we have done so on a number of occasions during this Committee’s proceedings—I drew attention at an early stage to the Law Society of Scotland’s evidence to the Joint Committee. It gave evidence alongside the Law Society of England and Wales and expressed its shared and serious concerns about the requirement to provide for the protection of legal professional privilege on the face of the Bill. It is pleased that the Government have taken steps to do that, although it is not happy with the extent of the protection provided. That is perhaps a debate for another day.

The purpose of the amendment is to deal with the definition of items subject to legal privilege at line 29, on page 175. The amendment deals with the definition in relation to Scotland and would define a “professional legal adviser” as a person who is an advocate—that is, of course, the correct professional designation for counsel in Scotland or a Scottish barrister—a barrister or a solicitor. The aim is to avoid leaving the definition of a “professional legal adviser” open to too wide or ambiguous an interpretation. It will limit the definition of those who are qualified to provide professional legal services to advocates, solicitors and, in certain circumstances, barristers. I will be interested to hear what the Solicitor General has to say about the proposed definition of a “professional legal adviser”.

When I saw the amendment, I was reminded of points I made earlier regarding the dangers of over-defining either legal professional privilege itself or those who are subject to it. Let us remind ourselves that legal professional privilege exists not to create a special category of person—in this case, a lawyer—who is exempt from requirements by which the rest of us have to abide, but to protect the client and the integrity of the advice that a lawyer may give to their client. My concern about the proposed definition is that it limits the definition of what items would be subject to legal privilege. For example, legal executives might well be in the position where they are giving advice and are covered by legal professional privilege. Even paralegals could be, should be and would be covered by legal professional privilege.

I absolutely accept the intention behind the amendment, but however well intentioned it might be, trying to define “professional legal adviser” in the Bill would actually damage and undermine the importance of legal professional privilege. We have had many debates about it, but I think the Bill serves to protect that privilege. We are continuing to discuss the precise extent to which that is reflected in all parts of the Bill, but there is no doubt about the Government’s clear intention. I am proud to be a Minister supporting this approach because I always felt that RIPA was deficient in that respect—I held those views long before I became a member of the Government. I am pleased that we are making such progress.

I am interested in the Solicitor General’s point about legal executives or paralegals. Does he agree that, in so far as communications with such individuals would require protection, they would be protected by subsection (1)(b)(ii), which specifies

“communications made in connection with, or in contemplation of, legal proceedings and for the purposes of those proceedings”?

That is a good point, but there is a danger that we overcomplicate the situation and end up restricting what is commonly understood as the important legal professional privilege that exists between lawyer and client. Instead of overcomplicating it, it would be far better to keep maters straight and reflect the position provided for in the Police and Criminal Evidence Act 1984, which applies here in England and Wales, the Police and Criminal Evidence (Northern Ireland) Order 1989 and the definitions relating to Scotland. The other statutes for England, Wales and Northern Ireland do not define “professional legal adviser” and I do not see a compelling need to do so here. As I have explained, the Bill goes a long way towards protecting that important legal privilege and serving the interests that that privilege is all about. It is not about the lawyers but the client. Fundamentally, it is that communication that merits special protection.

I wholly accept that it is not about lawyers but about the client, but is there not a need to define what is meant by “professional legal adviser”? That is all this is about really.

The hon. and learned Lady puts her case with her customary spirit and brio, if I may say so, but despite her attempts to persuade me, I am concerned that if we seek to narrow the definition in the way the amendment would, the sort of unintended consequences that I know the hon. and learned Lady would be very reluctant to see happen might flow. We should not, in the context of primary legislation, start to define what is better explained in other ways. For that reason, I urge her to withdraw the amendment.

I hear what the Solicitor General has to say, and in the circumstances I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 225 ordered to stand part of the Bill.

Clauses 226 to 231 ordered to stand part of the Bill.

Schedule 9 agreed to.

Clause 232 ordered to stand part of the Bill.

Schedule 10