Lords amendment: No. 4, in page 2, line 23, at end insert—
(2A) The matters to be taken into account in considering whether a warrant is necessary as mentioned in subsection (2) above shall include whether the information which it is considered necessary to acquire could reasonably be acquired by other means.
§ Mr. Waddington
I beg to move, That this House doth agree with the Lords in the said amendment.
The amendment clarifies "necessary" in clause 2, obliging the Secretary of State, as he always does in practice, to consider whether the information in questioncould reasonably be acquired by other means.Thus the Bill expressly mentions one of the main elements of the existing non-statutory procedures set out in the White Paper in a way which I hope will commend itself to the House. The change places beyond any doubt that there must be a consideration of alternatives and that it is one of the factors which the tribunal will consider in reviewing the Secretary of State's decisions. By qualifying "necessary", the amendment applies also to the Secretary of State's power to renew warrants and his duty to cancel them.
§ Mr. Clive Soley (Hammersmith)
The Minister moved towards us at a number of stages in the Bill's passage through this House. It is sad that he did not so move at an earlier stage on this issue. The argument was advanced clearly by my right hon. Friend the Member for Manchester, Gorton (Mr. Kaufman) on Second Reading.
In Committee, the. Opposition moved amendments which were supported by some Conservative Members. 755 The hon. Member for Grantham (Mr. Hogg), for example, supported the Opposition in a Division that we forced in an effort to get an amendment made to the Bill. If we had been successful, their Lordships in another place would have been saved some trouble.
I am rather puzzled why the amendment has taken the form in which it appears before us. The 1980 White Paper stated:normal methods of investigation must have been tried and failed, or must, from the nature of things, be unlikely to succeed if tried.Their Lordships have included a rather weaker test. The test is thatThe matters to be taken into account … could reasonably be acquired by other means.That is a looser test than that which appeared in the White Paper. On balance, we would have preferred the White Paper's wording. However, that is a minor matter. The inclusion of the amendment strengthens the Bill and for that reason we welcome it.
§ Mr. Douglas Hogg (Grantham)
I echo the remarks of the Opposition spokesman, the hon. Member for Hammersmith (Mr. Soley). The acceptance of the amendment will improve the Bill. I am grateful to my hon. and learned Friend the Minister of State for notifying the Government's acceptance. I am much in favour of defining the circumstances in which a warrant can be issued and defining them as exactly as possible in the circumstances. The amendment is a step in the right direction. I hope that my hon. and learned Friend will forgive me when I say that it is a small step and that I wish he had gone further.
§ Mr. Waddington
I take on board the remarks of the hon. Member for Hammersmith (Mr. Soley) and of my hon. Friend the Member for Grantham (Mr. Hogg). White Paper language is seldom suitable for direct incorporation into statute. For example, that criterion rests on "normal" methods having failed, but normality does not have a sufficiently precise meaning to serve here at the heart of the statutory definition of the Secretary of State's powers. The alternative test of impracticability, which was proposed in an amendment which was tabled in another place, does not allow the Secretary of State to take proper account of the need for speed or the adverse consequences of the discovery of alternatives. I believe that the formulation before us follows existing practices and gives proper effect to the approach set out in the White Paper. I am grateful to the hon. Member for Hammersmith and my hon. Friend the Member for Grantham for their comments, but even by their lights the amendment offers an improvement.
§ Question put and agreed to.