HL Deb 24 October 1990 vol 522 cc1417-20

100 After Clause 45, insert the following clause:

Power to obtain information and require production of documents

' .—(1) The Board may serve a notice on any—

  1. (a) authorised practitioner;
  2. (b) officer or employee of an authorised practitioner;
  3. (c) qualified person who is acting, or has acted, on behalf of an authorised practitioner; or
  4. (d) officer or employee of such a qualified person, requiring him to provide the Board (within such time and at such place as may be specified in the notice) with such document, or documents of such a description, or with such information, as may be so specified.

(2) The Board shall not exercise its powers under subsection (1) except for the purpose of obtaining such information as it thinks reasonably necessary in connection with the discharge of any of its functions.

(3) The Board's power under this section to require a person to produce any document includes power—

  1. (a) if the document is produced, to take copies of it or extracts from it and to require that person, or any other person who is or was a director or officer of, or is or was at any time employed by or acting as an employee of, the practitioner concerned, to provide an explanation of the document;
  2. (b) if the document is not produced, to require the person who was required to produce it to state, to the best of his knowledge and belief, where it is.

(4) The Board's power under this section may be exercised in relation to a person who falls within subsection (1) (c) or (d) only in relation to the provision of conveyancing services on behalf of the authorised practitioner concerned.

(5) Any person who, without reasonable excuse, fails to comply with a requirement imposed on him under this section shall be guilty of an offence and liable on summary conviction to a fine not exceeding level five on the standard scale.

(6) Any person who, in response to any requirement imposed on him under this section, knowingly or recklessly provides any information or explanation or makes any statement which is false or misleading in a material particular shall be liable—

  1. (a) on summary conviction, to a fine not exceeding the statutory maximum; and
  2. (b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.

(7) Where any person from whom production of a document is required under this section claims a lien on the document, the production of it shall be without prejudice to the lien.

(8) Nothing in this section shall compel—

  1. (a) the production of a document containing a communication which is privileged from disclosure in legal proceedings in England and Wales; or
  2. (b) the furnishing of information contained in such a communication.

(9) In this section "document" includes any information recorded in any form and, in relation to information recorded otherwise than in legible form, references to its production include references to producing a copy in legible form.'.

101 After Clause 45, insert the following clause:—

Investigations on behalf of Board

.—(1) If it appears to the Board desirable to do so—

  1. (a) in connection with the discharge of any of its functions; and
  2. (b) in the interests of customers or potential customers of an authorised practitioner,
it may appoint one or more competent persons ("the investigators") to investigate and report to it on the state and conduct of the affairs of that authorised practitioner.

(2) The Board shall give written notice of any such appointment to the authorised practitioner concerned.

(3) If the investigators think it necessary for the purposes of their investigation, they may also investigate the affairs of any qualified person who is acting, or has acted, on behalf of the authorised practitioner (so far as concerns the provision of conveyancing services on behalf of the authorised practitioner), after giving the qualified person written notice of their investigation.

(4) Any investigation under this section of the affairs of—

  1. (a) any institution which is authorised by the Bank of England under Part I of the Banking Act 1987, to carry on a deposit taking business;
  2. (b) any building society which is authorised to raise money from its members by the Building Societies Commission under section 9 of the Building Societies Act 1986; or
  3. (c) any insurance company which is authorised under
section 3 or 4 of the Insurance Companies Act 1982, shall be subject to such direction (if any) given by the Lord Chancellor with a view to limiting the scope of the investigation to matters concerned with the provision of conveyancing services.

(5) Any such direction may be general or be given with respect to a particular investigation.

(6) It shall be the duty of every person whose affairs are being investigated and of any officer or employee of his—

  1. (a) to produce to the investigators, within such time and at such place as they may reasonably require, all documents relating to the provision of conveyancing services by the practitioner which arc in that person's custody or power;
  2. (b) to provide the investigators, within such time as they may require, with such information as they may reasonably require with respect to the provision of those services; and
  3. (c) to give the investigators such assistance in connection with the investigation as he is reasonably able to give.

(7) The investigators may take copies of, or extracts from, any document produced to them under subsection (6).

(8) This section applies in relation to a former authorised practitioner or former qualified person as it applies in relation to an authorised practitioner or qualified person.

(9) Any person who, without reasonable excuse, fails to produce any document, or provide any information, which it is his duty to produce under subsection (6) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level five on the standard scale.

(10) Any person who, in response to any requirement imposed on him under this section, knowingly or recklessly provides any information or explanation or makes any statement which is false or misleading in a material particular shall be liable—

  1. (a) on summary conviction, to a fine not exceeding the statutory maximum; and
  2. (b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.

(11) Nothing in this section shall compel the production by an authorised practitioner or qualified person acting on his behalf of a document containing a privileged communication made by him or to him in that capacity.'.

102 After Clause 45, insert the following clause:—

Restrictions on disclosure of information

'.—(1) Subject to section (Exceptions from restrictions on disclosure), restricted information which relates to the business or other affairs of any person shall not be disclosed—

  1. (a) by the Board or any member of its staff;
  2. (b) by any person appointed as an investigator under section (Investigations on behalf of Board) or any officer or servant of his; or
  3. (c) by any person obtaining it directly or indirectly from a person mentioned in paragraph (a) or (b),
without the consent of the person from whom it was obtained and, if they are different, the person to whom it relates.

(2) Subject to subsection (3), information is restricted information for the purposes of this section if it was obtained (whether or not in response to any requirement that it be provided) for the purposes of, or in the discharge of functions under, any provision made by or under this Act.

(3) Information shall not be treated as restricted information for the purposes of this section if it has been made available to the public by virtue of being disclosed in any circumstances in which, or for any purpose for which, disclosure is not prevented by this section.

(4) Any person who contravenes this section shall be guilty of an offence and liable—

  1. (a) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both;
  2. (b) on summary conviction, to a fine not exceeding the statutory maximum.'.

The Lord Chancellor

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 100 to 102 en bloc. I shall speak also to Amendments Nos. 100 to 105, 166, 236, 238 and 246. The amendments are designed to deal with a matter that was raised by the noble Lord, Lord Mishcon, at an earlier stage. They give the Authorised Conveyancing Practitioners Board the powers it needs to exercise proper administration and control over authorised conveyancing practitioners, to preserve assets pending investigation and to provide for an appeal system against its decision should an aggrieved party wish to appeal. They represent the result of the undertaking that I gave during the Report stage in this House to consider further what powers of intervention and investigation the board might need. The Law Society has been asking for investigation and intervention powers of this kind for some time and I hope that both they and this House will welcome the amendments here.

Moved, That the House do agree with the Commons in their Amendments Nos. 100 to 102.—(The Lord Chancellor.)

Lord Mishcon

My Lords, I am most grateful to the noble and learned Lord. I am sure that the Law Society is equally grateful to him for these very useful amendments which give the board the powers of intervention which he mentioned. I have tabled Amendment No. 102A. I should like to explain to your Lordships the basis of my amendment.

The Lord Chancellor

My Lords, I believe that I should formally put Amendment No. 102 because I moved Amendments Nos. 100 and 101. I must put Amendment No. 102 because the noble Lord, Lord Mishcon, wishes to move an amendment to that amendment.

Lord Mishcon

My Lords, if the noble and learned Lord will forgive me, I was slightly put off by the fact that he mentioned Amendment No. 102. I had expected that he would be moving Amendments Nos. 100 and 101 and that afterwards on Amendment No. 102 I would move my amendment to the amendment, but he said that he was putting Amendment No. 102 as well.

The Lord Chancellor

My Lords, it is entirely my mistake. I am very sorry. I intended to move Amendments Nos. 100 and 101. I must do that now.

Moved, That the House do agree with the Commons in their Amendments Nos. 100 and 101. —(The Lord Chancellor.)

On Question, Motion agreed to.