I beg to move amendment 3, in clause 12, page 10, line 18, leave out “that is confidential journalistic data”.

This amendment would require notice to be given of an application for an overseas production order for electronic data which is believed to contain any journalistic data, not just confidential journalistic data.

With this it will be convenient to discuss the following:

Amendment 10, in clause 12, page 10, line 19, at end insert—

“(1A) Where an application is for journalistic data, the court must not determine such an application in the absence of the journalist affected, unless—

(a) the journalist has had at least two business days in which to make representations; or

(b) the court is satisfied that—

(i) the applicant cannot identify or contact the journalist,

(ii) it would prejudice the investigation if the journalist were present,

(iii) it would prejudice the investigation to adjourn or postpone the application so as to allow the journalist to attend, or

(iv) the journalist has waived the opportunity to attend.”

This amendment would give a journalist opportunities to make representations in relation to any application for data which he or she may hold.

Amendment 20, in clause 12, page 10, line 27, leave out subsection (4).

Clause 12 states:

“An application for an overseas production order must be made on notice if there are reasonable grounds for believing that the electronic data specified or described in the application consists of or includes journalistic data that is confidential journalistic data.”

Amendment 3 is designed to broaden that notice requirement to include material that might not be counted as strictly confidential but is nevertheless sensitive. When there is an application for journalistic data, amendment 10 would mean that the court must not determine that application in the absence of the journalist affected, unless the journalist has had at least two business days to make representations, or the court is satisfied that that would not be appropriate on a number of other counts. These two matters are important, and I urge the Minister to consider them carefully.

The notice requirement often enables a negotiation to take place between the media organisation to which the journalist belongs, or the journalist themselves, regarding what data it is appropriate to provide. It would also enable the media organisation or journalist formally to oppose the application if necessary. We believe that those are important safeguards. The notice requirement is helpful for the overall protection of journalistic material that we have discussed during our deliberations on a number of different clauses, and it is a fundamental aspect of fairness in such situations. It is not that there is a blanket exception to material becoming available in appropriate circumstances, but the amendment would introduce an appropriate balance that allows the journalist or media organisation to put forward their concerns and try to ensure that we protect our free press and investigative journalism—something I am sure all members of the Committee wish to do.

I will be brief because the hon. Gentleman said much of what I wish to say, but I wish to endorse it. The amendment would make the clause consistent with the Police and Criminal Evidence Act 1984 and apply it to all journalistic information, rather than just confidential information. I would be pleased if the Minister considered such a provision.

The point has been made—perhaps I can extend it—that such a measure would also save a lot of time and administration. If journalists are given an opportunity to negotiate with more notice, we will not find that matters reach the stage where it is too late. I am led to believe that the procedure works very much on a negotiation basis. On that basis, I think this measure is fair and consistent with domestic matters, and that it will also make for more administrative justice through our court process. I therefore support the sentiments behind the amendment, and I hope that the Minister will consider it.

I say gently to Opposition Members that, to a certain extent, and judging by what the Minister said earlier, we could perhaps have flexibility in this area and make the Bill work better if they do not seek to drive a coach and horses through the Bill with an amendment that is completely outside its scope and could potentially take it to pieces. I make those gentle points to those on both Front Benches.

The hon. Member for Torfaen made his points with force and alacrity, and I shall not seek to detain the Committee by repeating them. However, in supporting the hon. Gentleman, I urge the Minister to listen not only to those on the Opposition Benches, but to those on his own Back Benches, to concede the principles of the amendment, and to table Government amendments on Report. If he does not do so, we will.

The Minister shook himself. Amendments 3, 10 and 20 would provide that when journalistic data is sought as part of an overseas production order, the journalist is put on notice of application. Clause 12(1) of the Bill requires that when confidential journalistic data is sought as part of an overseas production order, the respondent is put on notice. The respondent in this context would be the communication service provider from which law enforcement agencies or prosecutors are seeking content data.

The Government intended to ensure that where an application for an overseas production order was made there was a presumption that any person affected by the order, which would include the journalist themselves, was also put on notice. That was to be included in the relevant court rules, as is the case with domestic production orders, including those made under PACE, the Terrorism Act and POCA.

I am pleased to see that the amendments tabled by the hon. Member for Torfaen recognise that, should all journalists be put on notice when an overseas production order is served in respect of an application that relates to their data, certain exemptions must be in place. It is important that the requirement to provide notice for an overseas production order is not absolute. The difference between the Bill and PACE is that PACE production orders are served directly on the respondent themselves—that is, the journalist. Where PACE requires notice to be given to the respondent, notice has been given to someone who will of course be made aware of the order when it is served, as they are the person who will be required to comply with it. In practice, that will be the person handing over the data to law enforcement agencies.

However, in the Bill the orders are served directly on the CSP that owns and controls the data. Giving notice to a third party—the journalist, who is not required to act on the order—should not stand in the way of issuing an overseas production order where there are good reasons for notice not to be given. I believe that the judge is well placed to determine whether the journalist should be notified, and the circumstances in which it will not be appropriate for that to be the case.

The exemptions set out in amendment 10 are that

“the applicant cannot identify or contact the journalist…it would prejudice the investigation if the journalist were present…it would prejudice the investigation to adjourn or postpone the application so as to allow the journalist to attend, or…the journalist has waived the opportunity to attend.”

Those exemptions mirror what is currently in place in court rules for domestic production orders through PACE, and they seem a sensible approach. For example, we do not want to oblige law enforcement agencies into notifying an ISIS blogger or journalist when clearly that could prejudice the investigation. Those exemptions are fundamental to retaining a robust and sensible approach to evidence.

I thank Members for their detailed arguments, and for the time that they have taken to consider the protection of journalists. I reiterate that both the notice requirements and the important exceptions that underpin them will be provided for, as they are currently, in court rules. However, I am happy to consider whether they can be provided for in the Bill. I am happy to discuss that with hon. Members as we proceed to Report, if they will withdraw the amendment.

On the basis of that continuing discussion, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment 2, in clause 12, page 10, line 39, at end insert—

“(6) In determining for the purposes of subsection (5) whether or not a purpose is a criminal purpose, crime is to be taken to mean conduct which—

(a) constitutes one or more criminal offences under the law of a part of the United Kingdom, or

(b) is, or corresponds to, conduct which, if it all took place in a particular part of the United Kingdom, would constitute one or more criminal offences under the law of that part of the United Kingdom.”

This amendment clarifies what is meant in Clause 12(5)(a) of the Bill by the reference to creating or acquiring electronic data with the intention of furthering a criminal purpose. What is criminal is to be judged by reference to what is, or would be, a criminal offence under the law of a part of the United Kingdom.

Clause 12(5) provides that electronic data is not to be regarded as having been created or acquired for the purpose of journalism if it was created or acquired with the intention of furthering a criminal purpose, and that electronic data that a person intends to use to further such a purpose is not to be regarded as intended to be used for the purpose of journalism. As drafted, the Bill does not explicitly define what is meant by a criminal purpose in that context. Without a definition of criminal purpose or a crime in the Bill, there is a risk that the provision could be interpreted inconsistently within UK law. Our intention is that a criminal purpose is criminal only if the conduct constituting a related crime is an offence under UK law, regardless of whether it is a crime in the place where the relevant data was created or acquired, or where it was intended to be used.

For example, if a person located in another country was creating an extremist blog that encouraged others to join a terrorist organisation that is proscribed in the UK, such as ISIS, that person should not benefit from any protections afforded to journalistic data under the Bill. That could be the case even when that country does not criminalise the same conduct. That reflects the principle that the criminal purpose must be recognised as criminal under UK law.

To flip the example the other way, if a legitimate British journalist based abroad is writing an article about political corruption, which the country that they are in deems illegal, we should absolutely ensure that they are given the right protection under the Bill, given that their conduct is perfectly acceptable under British law. Without something that links criminal purpose to conduct that is criminal in the UK, or to conduct that would be criminal had it occurred here, there is a risk that the term will be interpreted by reference to the criminal law of the place where the person who created or acquired the data is located. I therefore propose amending the Bill to include a definition of what is meant by “criminal purpose”. I hope that hon. Members will support the need for this clarifying amendment.

Colleagues, we usually have to finish at 11.25 am, but I have discretion to extend the sitting by 15 minutes, if I think we can finish our consideration of the Bill in that time.

The Chair deferred adjourning the Committee (Standing Order No. 88).

I support the sensible amendment. As subsection (5) is drafted, it is clearly the case that we should not regard electronic data

“as having been created or acquired for the purposes of journalism if it was created or acquired with the intention of furthering a criminal purpose”.

The difficulty comes when we have investigative journalistic work in another country that would not be regarded as a criminal act under UK law but could be illegal in that country, if it had particularly stringent or harsh laws. The sensible way to deal with that problem is the Government’s amendment, which defines criminal purpose in relation to UK law. That achieves the purpose of subsection (5) without endangering investigative journalistic activity abroad, which we all want to see.

Amendment 2 agreed to.

Clause 12, as amended, ordered to stand part of the Bill.

Clauses 13 to 20 ordered to stand part of the Bill.

Question proposed, That the Chair do report the Bill, as amended, to the House.

Thank you, Mrs Moon, for your swift and efficient chairmanship. I am glad that something is functioning in Parliament and Government, and it is this small corner of the United Kingdom. I thank hon. Members for their contributions. I thank the hon. Member for Torfaen, who has contributed throughout, and the hon. Member for Paisley and Renfrewshire North, who has also contributed in as consensual a way as possible. It is regretful that we disagree on one important part.

The Bill will allow our citizens to be kept safer than they are now. As unexciting as its title is—I designed it that way—the Bill is an incredibly important piece of legislation. I hope that it progresses to Report soon and then returns to the House of Lords. I thank hon. Members for their attendance. The speed of our consideration does not reflect the seriousness of the Bill.

Thank you, Mrs Moon, for the way you have chaired proceedings. I also thank all the officials, the hon. Member for Paisley and Renfrewshire North, the Minister and all hon. Members who have contributed. As the Minister said, the speed of our proceedings is due to the fact that the vast bulk of the Bill is uncontroversial; it does not detract from the serious nature of the matters we are considering. I look forward to hearing further from the Minister on Report about the concerns I have expressed.

Question put and agreed to.

Bill, as amended, accordingly to be reported.

Committee rose.