POWER TO OBTAIN INFORMATION (Hansard, 14 October 1975)

§ Mr. Sainsbury
I beg to move Amendment No. 227, in page 34, line 31, after '(a)', insert 'without reasonable excuse'.

Mr. Deputy Speaker
With this amendment we may take Amendment No. 228, in page 34, line 31, leave out 'without reasonable excuse'.

§ Mr. Sainsbury
The effect of the two amendments is to move the position in the clause of the wording "without reasonable excuse". At present, it reads: A person who— (a) refuses or without reasonable excuse fails to comply with a notice under this section". I find it hard to understand why it would not be better if it read: A person who— (a) without reasonable excuse refuses of fails to comply". I am sure it would be generally agreed that one can sometimes have a reasonable excuse for refusing. Often it is not wilful refusal, but a refusal to do something based on reasonable grounds. Therefore, it seems to me that the best of the two options is to move the words "without reasonable excuse" to the beginning of the paragraph so that they qualify both the refusal and the failure. I hope that the Government will feel able to accept that.

§ Mr. Oakes
I am afraid that I cannot accept it. We considered this matter in Committee and the hon. Gentleman will remember that I said then that it was a semantic point but that I would see whether the wording proposed by the Opposition was better. This is one of the occasions on which I think the Government's wording was right in the first place.
There have been many amendments on which I have accepted points that the Opposition have put forward in Committee. Perhaps I can explain my reasons by giving an example. If there is no response whatsoever to a Clause 36 notice, that would constitute a refusal and if the power is to have any teeth there must be a penalty. On the other hand, if the person in question responds to the notice by saying that, for the reasons he gives, he is unable to supply the information required, that would constitute a failure to comply. If, in the Secretary of State's opinion, those reasons did not justify the failure, the matter could be pursued before the courts.
In short—this arises in many Acts—it is important to preserve, as does the present wording, a clear distinction between refusal and failure and the Department therefore stands by the paragraph in its present form.

§ Mr. Graham Page
I thought that the Minister was rising to accept the amendment, because it is such an obvious amendment. Let us suppose that one refuses in the belief that one has a perfect right to do so. Surely if one has reasonable excuse to refuse one should not be liable to a £400 fine or on conviction on indictment, to a fine or imprisonment for a term not exceeding two years or both. This is a serious matter. It may well be that a person does not just fail to comply with the notice, but definitely refuses to do so thinking that in the circumstances he has a right to refuse. He may well have that right to refuse, but he may be wrong. Surely, if he has a reasonable excuse for refusing and he makes a positive refusal—that sound like a contradiction in terms, but I am sure the hon. Gentleman understands what I mean—he may yet be found liable on conviction to a fine or imprisonment. I am sure that no harm is done by putting the words, "without reasonable excuse" at the beginning of the sentence, as suggested. However, certainly possible harm and indeed probable harm will come from leaving them where they are at present.

§ Mr. Sainsbury
My right hon. Friend the Member for Crosby (Mr. Page) has raised a valid point, because it is clear from subsection (4) A notice under this section may…require the person to whom the notice is addressed—

(a) to state whether he has in his possession or control any document which constitutes, or is evidence of, any lease or other disposition".
Wide-ranging information can be asked for because it says, to produce to an officer of the Secretary of State, being an officer duly authorised". Let us suppose that he is not convinced that the officer is duly authorised and he refuses. Surely that is a reasonable ground for refusal if the officer is unable to produce appropriate documents to prove that he is so authorised.
A solicitor who refuses to reveal details of his clients' affairs on those grounds would render himself liable on conviction on indictment to a fine or imprisonment or both. It is unreasonable not to allow us to give him reasonable grounds for refusing.

§ Mr. Oakes
I shall take the hon. Gentleman's example of a solicitor. What a solicitor would do in the circumstances is not merely refuse but say, 'I am a solicitor of the supreme court. I would be in breach of professional etiquette if I disclosed that information." The court would test his reason. Similarly, there is the example put forward by the right hon. Gentleman where a notice has gone out and he says, "I cannot supply this information". The position is not that he does nothing about it. He says, "I have not got this information." The matter can be judged. Any clause must have teeth. I suggest that we leave the matter as it is.