Investigatory Powers Bill (Seventh sitting)

Robert Buckland Excerpts

Committee Debate: 7th sitting: House of Commons
Tuesday 19th April 2016 Public Bill Committees

[Joanna Cherry (Edinburgh South West) (SNP)]

There is one small difference between amendment 135, which was tabled by the Labour party, and amendment 236, which was tabled by the Scottish National party. Amendment 236 includes, in proposed new subsection (2)(p), the Scottish Criminal Cases Review Commission, which is a separate body. I say that for completeness.

[The Solicitor General (Robert Buckland)]

It is good to serve under your chairmanship once again, Ms Dorries. I welcome the spirit in which the amendments have been tabled. There is a common sense of purpose among Committee members to ensure that the ambit of the authorities that have power to access communications data should always be strictly scrutinised. In that spirit, the Government have progressively reduced the number of such authorities. They have reviewed that number and keep it under review. The list of such authorities in the Bill is not simply a replication of the list in the Regulation of Investigatory Powers Act 2000, but has been the subject of careful consideration.

It has been judged that it is necessary for those public authorities to be allowed to access communications data for a narrow range of purposes. For example, insider trading needs to be investigated, and the Financial Conduct Authority is the body to do that. The Maritime and Coastguard Agency will need access to such information to locate people lost at sea. Bodies such as the Food Standards Agency and the Department for Work and Pensions have been given clear remits by Parliament to investigate certain types of criminality and civil matters, because such investigations often require dedicated resources and specialist knowledge. To unduly restrict those agencies in their work would cause an imbalance.

I know that the hon. and learned Gentleman shares those views, because in his previous incarnation as the Director of Public Prosecutions he made it clear, for example, that communications data should be available to organisations such as the DWP in investigating any abuse of the welfare system or other public funds. I therefore know that he has a common purpose in mind.

The Bill for the first time brings together all the public authorities with access to communications data in primary legislation. That is an important and welcome step up from previous practice. I should be clear that all the authorities listed in the Bill were required to make the case that they needed the power to access communications data. Therefore, as I have outlined, the list in the Bill is not just a blind replication of existing lists. As I have said, we removed 13 public authorities from the list in February last year. Amendments that were tabled by my right hon. Friend the Minister for Security and that we will debate shortly will introduce further restrictions on certain public authorities. That shows that the Government are taking great care in this area.

[Keir Starmer]

I wonder whether the Solicitor General can assist the Committee, either now or at some later stage, by setting out some detail about how the case was made for each of the agencies, and in particular why the designated senior officer grades were chosen. That is quite a complicated question, but it is striking, from the Committee’s point of view, that a watch manager is listed as a designated senior officer when one is talking about accessing communications data. I have already given other examples.

[The Solicitor General]

I shall try to assist the hon. and learned Gentleman. I will not be able to give him an exhaustive list here and now, as he is aware, and I am pretty sure that the information that he seeks is available in some form. We will, of course, help to signpost him to it.

I make the simple case about watch managers that there will be emergency situations, such as missing persons inquiries, in which fleetness of foot is essential. Suggesting that a more senior level of management would be appropriate risks important data being lost or not being available in those emergency situations. There are certain key situations where we are talking about the protection of life in which the balance needs to be struck in the way that we suggest in schedule 4.

With regard to schedule 4, public authorities cannot all acquire communications data for the full range of statutory purposes. Each can acquire data only for the purposes for which it has justified a need for them. That maintains the essential principle of proportionality, so that the public authorities concerned only have the powers for which they have made a compelling case.

To give some examples of the changes from RIPA, ambulance services will no longer be able to acquire communications data for the purposes of preventing and detecting crime, and the Prudential Regulation Authority will no longer be able to acquire communications data in any circumstances. In addition, the Bill allows for the ability of a public authority to access communications data to be removed, should a public authority cease to have a requirement to make those acquisitions. That is a very important check and balance.

To fill in some more detail in respect of the question the hon. and learned Member for Holborn and St Pancras asked about the detailed justification for each public authority, each authority has been required to provide evidence of utility and the need to acquire communications data. That included detailed consideration of the level of authorising officers, so that we got the balance right in terms of appropriateness.

[Joanna Cherry]

I note that the Solicitor General spoke of details of the “utility”, but the Digital Rights Ireland case sets out that states must limit the number of persons authorised to access and use this sort of data to what is “strictly necessary”. Does he agree that a long list of authorities, many of whose primary functions are wholly unrelated to law enforcement in the context of serious crime, is inconsistent with the requirement of strict necessity laid down in the Digital Rights case?

[The Solicitor General]

I am grateful to the hon. and learned Lady and can correct the record in this way. I should have used the phrase “utility and need”. I think that important word, to which she quite rightly draws my attention, answers the point. In one of the examples I have given, where a need was not demonstrated by the PRU, the power was removed entirely.

Among the bodies that the amendment seeks to remove are Her Majesty’s Revenue and Customs and the Ministry of Defence. I am afraid that both bodies are intercepting agencies, and communications data are part of their work in targeting interception so that the powers which we all accept are intrusive are used in as tightly constrained circumstances as possible. My worry is that the amendment, however well intentioned, might well have the contrary effect on that important targeted work and the need for those organisations to target their activities.

I remind the Committee that David Anderson QC concluded in his report:

“It should not be assumed that the public interest is served by reducing the number of bodies with such powers, unless there are bodies which have no use for them.”

The Joint Committee on the Draft Investigatory Powers Bill also recognised communications data as

“an important tool for law enforcement and other public bodies.”

For those reasons, I urge the hon. and learned Gentleman to withdraw the amendment.

[Keir Starmer]

I am grateful to the Solicitor General. There is obviously concern about the threshold and safeguards for accessing communications data. That is what the Digital Rights case is all about; it is what the Tom Watson and David Davis case will test. To some extent, until that case is concluded, we will not know in specific terms what the safeguards are, although, as I foreshadowed last week, my view is that the requirements for safeguards will tighten as time goes by. It may not be exactly as the divisional court set out.

The Solicitor General has indicated that he will point me to the material that at least summarises why it was thought that each body should be on list. I am grateful for that and will consider it carefully. Will he also, either in a letter or some other appropriate form, set out the test that was applied in clear terms, so that it can be contrasted with the Digital Rights case and any outcome of the David Davis case in due course? I acknowledge that the hon. and learned Gentleman makes a powerful point about Her Majesty’s Revenue and Customs and, on that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

--- Later in debate ---

[Joanna Cherry]

I beg to move amendment 241, in clause 67, page 53, line 8, leave out subsections (4)(a) and (b) and insert—

“(a) is an officer appointed by the Investigatory Powers Commissioner;

(b) works subject to the supervision of the Investigatory Powers Commissioner; and is responsible for advising—

(i) officers of the relevant public authorities about applying for authorisations; or

(ii) designated senior officers of public authorities about granting authorisations.”

The amendment provides for the SPoC scheme to be operated under the authority of the Investigatory Powers Commissioner.

The clause deals with the use of a single point of contact. The purpose of the amendment is to provide for the single point of contact scheme to be operated under the authority of the Investigatory Powers Commissioner. The Bill, as it currently stands, provides that authorisations shall be largely self-approved by officials and officers of public bodies, subject to the advice of a single point of contact. The single point of contact is within the organisation and is responsible for advising on the lawfulness of the authorisation. Local authorities, police forces and public bodies that are too small to have their own single point of contact are required by the Bill to enter into collaboration agreements with others and if the amendment is successful, it will necessitate leaving out clauses 69 to 71.

The Scottish National party’s preferred model would be judicial authorisation for access to communications data, as addressed in the amendments to clause 53 that we discussed in Committee last week—I have no doubt that they will be revisited on Report. But if we are to be stuck with the current model, we in the SNP think it only fair and right that the Bill should provide for the single point of contact scheme to be operated under the authority of the Investigatory Powers Commissioner. In my submission, that would give the sort of oversight that we were promised in advance of the Bill but that is absent from the Bill itself.

It is my argument that it is completely unacceptable for a public authority to be able to authorise itself to have access to revealing personal data. In making this argument, I do not seek to impugn the integrity of public officials or, indeed, senior employees of our law enforcement agencies, but rather to point out the glaring reality that the primary concern of such persons will relate to the operational capacity of their agencies. That is simply a matter of organisational culture: it is perfectly understandable, but it militates in favour of independent third-party authorisation. If we are to have an Investigatory Powers Commissioner, why not give him or her that power, so that there will be meaningful oversight?

In my argument, the value and credibility of any single point of contact model would be enhanced by ensuring its independence from the public authority that seeks to use the intrusive powers given under this part of the Bill. That would also remove the need for collaboration agreements, because the single point of contact advisers would be centralised within the IPC framework. It would lift a great deal of bureaucracy out of the public organisations and law enforcement agencies by putting oversight in the hands of the Investigatory Powers Commissioner, who would then be able to encourage, across the board, a standardised approach to the advice given and, importantly, consistency in the application of the law.

The provisions currently in the Bill consolidate existing practice on the guidance issue for single points of contact and the self-authorisation regime, but the Joint Committee on the draft Communications Data Bill recommended consolidation under the leadership of police forces. However, I would argue that, while the single points of contact remain embedded within the same organisations that seek to access this intrusive material, they cannot be considered to be independent for the purposes of the role they play in the authorisation process. If they are not independent, we risk passing legislation that conflicts with European law, which, for the time being at least, applies in the United Kingdom.

The amendment would mean that the single point of contact framework, if continued, would operate as part of an overriding single oversight body, under the auspices of the Investigatory Powers Commissioner. As I said, that would create a single consistent body of staff, capable of providing help, assistance and guidance before the final determination of any application. To my mind, that is a highly sensible and appropriate approach; I would like to know why the Government are not prepared to support it.

[The Solicitor General]

I am grateful to the hon. and learned Lady for her amendment and her observations, because they give me an opportunity to remind the Committee how important the single point of contact system is, and how envied it is by other parts of the world. Those are not just my words; paragraph 9.93 of David Anderson’s important report, “A Question of Trust” states:

“As to the authorisation of communications data requests, the police took a good deal of pride in the SPoC system, which was said to be ‘the envy of many friendly countries’.”

Mr Anderson makes a particularly important observation in paragraph 9.94, when he states:

“Within law enforcement generally, it was felt that SPoCs should have strong relationships with the investigators and this was more likely to happen where they were part of the same organisation, working to the same goal (albeit with distinct and independent responsibilities).”

I will finish the paragraph:

“Their effectiveness as a ‘guardian and gatekeeper’ could however diminish were they to become simply part of the investigation team”.

Here the hon. and learned Lady’s point is a strong one, but it has to be observed in the right context, which is that of the investigation. I absolutely agree with her about the importance of having an arm’s length approach, which is why the designated senior officer who is allowed to authorise an application must not be part of that operation. The draft code of practice contains helpful guidance from paragraph 4.28 to paragraph 4.47, and paragraph 4.48 then deals with the question of the designation of a single responsible officer.

Therefore, in the light of all the careful consideration that has been given to this tried and tested system, I argue that the balance is being properly struck here. Indeed, the extensive benefit and the safeguarding mechanism which the SPOC role brings to this process has been recognised by the Interception of Communications Commissioner, who in his report of March 2015 described the SPOC role as “a stringent safeguard”. These are people who are specially trained in the acquisition of communications data.

[Suella Fernandes (Fareham) (Con)]

I reiterate that this point was made very clearly by Michael Atkinson of the National Police Council’s Data Communications Group. He described the role of the SPOC as being “independent of the investigation” and subject to IOCCO inspections. They would also be regularly overseen, scrutinised and challenged on their work. So there is a very robust system of oversight and review, is there not?

[The Solicitor General]

My hon. Friend is absolutely right. It is that oversight which I argue establishes the essential checks and balances here, to prevent the sort of abuse about which all of us on the Committee would, rightly, be worried. These are sensitive matters.

[Joanna Cherry]

At the Scottish Bar we often use the phrase “nemo iudex in sua causa”, which means “no man should be a judge in his own cause”. I am sure that that is used at the English Bar as well. Will the Solicitor General tell me how he is able to elide this principle, as the SPOC comes from the same organisation as the initial authoriser?

[The Solicitor General]

I thought I had made it clear to the hon. and learned Lady that the key word here is investigation. Those officers who are responsible for the course of the investigation are not the SPOC. That person is independent and they are at arm’s length. They are therefore able to exercise the objectivity and the sense of self-discipline that is essential if public authorities are to retain our confidence. It is all underpinned by the scrutiny of the IOCCO. In my submission, to move away from a tried and tested system that is internationally recognised would be, with regret, a mistake.

With respect to the hon. and learned Lady, I do not see how the process would be enhanced if it were to be done in the way that the amendment suggests. We already have oversight, as I have indicated. In fact, my concern is that the expertise within public authorities of how best to facilitate these sort of requests could be diminished, and there could be a detrimental impact on the relationships with both the service providers and the investigators. My worry is therefore that the understandable aims behind this amendment could be frustrated in a way that is perhaps not being properly foreseen.

[Joanna Cherry]

On a connected point, the evidence from Jo Cavan at IOCCO has expressed concern about the inclusion of subsection (3)(b), “the interests of national security”. I would like to probe this. It has been suggested that the justification for deeming the interests of national security to be almost an exceptional circumstance is unclear. What is the justification?

[The Solicitor General]

In a nutshell, we are talking here about rare and exceptional circumstances where it might not be possible to consult an SPOC. Where we are talking about national security, I would envisage a risk to the nation that all of us would understand if we saw it—rather like an elephant in a room. As I have said, though, it is couched with particular regard to the governing part of that clause, which is exceptional circumstances. Therefore the hon. Lady can be reassured that this is not some sort of back door by which this power would be misused. For all the reasons I have advanced, I urge the hon. Lady to withdraw the amendment.

--- Later in debate ---

[Keir Starmer]

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.

[The Solicitor General]

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.

[Keir Starmer]

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.

[The Solicitor General]

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.

[Keir Starmer]

Will the Solicitor General give way?

[The Solicitor General]

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.

[Keir Starmer]

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.

[The Solicitor General]

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.

[Keir Starmer]

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.

[The Solicitor General]

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.

[Keir Starmer]

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.

--- Later in debate ---

[The Solicitor General]

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.

[Joanna Cherry]

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?

[The Solicitor General]

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.

[Keir Starmer]

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.

[The Solicitor General]

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.

[Lucy Frazer]

Will the Solicitor General give way?

[The Solicitor General]

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.

[Lucy Frazer]

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.

[The Solicitor General]

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.

[Keir Starmer]

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.

[The Solicitor General]

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.

[Joanna Cherry]

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 Solicitor General]

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 Commissioners Office 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.

[Keir Starmer]

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

Collaboration agreements

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