SPECIAL PROCEDURE (Hansard, 15 May 1984)

§ Mr. Carlile
I beg to move amendment No. 224, in page 92, line 5, leave out 'circuit' and insert 'High Court'.

Mr. Deputy Speaker
With this amendment it will be convenient to take the following amendments:
No. 225, in page 92, line 6, leave out from 'that' to 'fulfilled' and insert 'the access conditions are'.
No. 226, in page 92, line 8, leave out 'first set of access conditions is' and insert 'the access conditions are'.
305 No. 227, in page 92, line 11, after 'is', insert 'excluded material or'.
No. 228, in page 92, line 13, leave out 'special procedure'.
No. 229, in page 92, line 17, leave out 'special procedure'.
No. 230, in page 92, line 19, leave out 'special procedure'.
No. 231, in page 92, line 30, leave out paragraph 3.
No. 232, in page 92, line 40, leave out 'circuit' and insert 'High Court'.
No. 236, in page 93, line 34, leave out 'circuit' and insert 'High Court'.
No. 237, in page 93, line 36, leave out 'either set of access conditions is' and insert 'the access conditions are'.
No. 238, in page 93, line 38, leave out from 'fulfilled' to end of line 43.
No. 240, in page 94, line 13, at end insert— '(d) that an order under paragraph 4 above relating to the material has not been complied with'.

§ Mr. Carlile
It is rather late to be dealing with serious matters. We are considering making orders to permit a constable to enter and search premises for excluded material and special procedure material. It gives a judge the power to permit the police to search for material which is especially confidential. It is so confidential that it falls within one or other of the categories of special procedure material or excluded material.
It is such a serious matter for the police to obtain a warrant to search for and take such material that it should be dealt with at the highest judicial level of first instance—by a high court judge. I do not criticise circuit judges, who would consider these matters with great care, but to emphasise the importance, the significance and the extreme circumstances in which such a warrant may be applied for, it should be made by a high court judge rather than a circuit judge.
There should be only one set of access conditions contained in schedule 1, and it should contain the more stringent requirements. The police should have to satisfy the more stringent requirements before they can obtain a warrant that enables them to search for and take away these items. I hope that the Minister will assure us that these matters, which were not discussed in Committee, will be considered and that the Government may give effect to them in another place.

§ Mr. Hurd
The hon. Gentleman tabled these amendments for the Committee stage but was unable to move them at that time, so I am glad that he has had the chance to speak to them even at this late hour. I cannot however, advise my hon. Friends to accept them.
2.15 am
We do not believe that it is sensible to require applications under schedule 1 to be heard by a High Court judge rather than by a circuit judge. The royal commission was clear in its view that a circuit judge was a sufficiently high level of judicial authority for this purpose, and the judiciary itself agreed when we consulted it on this. When one considers the level of decision-taking allotted to judges of different ranks, it is perfectly sensible that circuit judges should have this responsibility.
I believe that it would be misguided, especially at a quarter past 2 in the morning, to delete entirely the second 306 set of access conditions under schedule 1 which empower a circuit judge to make a production order or issue a search warrant in respect of excluded or special procedure material if a statutory authority now exists for the issue of a warrant to search for the material concerned.
I shall not go through the arguments against the amendments at length, any more than the hon. Gentleman went through the arguments in favour of them at length. I merely say that we have constructed the two sets of access conditions, just as we have constructed the difference between excluded and special procedure material, to meet a very wide range of representations covering a very wide range of circumstances.
Although the hon. Gentleman is right in saying that another place will consider this part of the Bill with care, it has already gone through many stages and is now perhaps the result of more consultation than any other part of the Bill, just as the Bill is perhaps the result of more consultation than any other legislation in recent years, and I cannot advise my hon. Friends to upset it at this hour.