HL Deb 19 February 1998 vol 586 cc327-42

4.24 p.m.

The Minister of State, Department of Trade and Industry (Lord Simon of Highbury)

My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be further considered on Report.—(Lord Simon of Highbury.)

On Question, Motion agreed to.

Clause 26 [Powers when conducting investigations]:

Lord Haskel moved Amendment No. 84: Page 13, line 14, leave out from ("Director") to end of line 15.

The noble Lord said: My Lords, I spoke to this amendment on the first day of Report. I beg to move.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 85: Page 13, line 15, at end insert ("which—

  1. (a) identifies the specified document;
  2. (b) specifies the conduct which is being investigated;
  3. (c) specifics the Director's grounds for considering that the specified document relates to a matter which is relevant to that investigation; and
  4. (d) states that a person on whom the notice has been served has the right, and shall be afforded reasonable time, to seek legal advice before complying with the notice.").

The noble and learned Lord said: My Lords, in moving Amendment No. 85, I shall speak to a number of other amendments, but, in view of the Minister's Amendment No. 86, for which I am grateful, not to Amendment No. 88.

The purpose of this group of amendments is to ensure that those who are to be subject to investigation will be aware, first, of the purpose of the investigation and, secondly, the penalties to which they might be subject if non-compliance follows. That will assist them in establishing whether the documents requested are necessary to the investigation. It will have the added advantage of preventing fishing expeditions by investigating officers.

The requirement in the amendment that the purpose of the investigation should be stated exists in the corresponding powers of the European Commission where it has authority to request information. At EU level, the question of whether a document is necessary to an investigation is subject to review by the European Court. In our view, a similar safeguard should exist in the United Kingdom.

The group of amendments also contains a proposal that persons subject to an investigation should be given an opportunity to obtain legal advice. At first sight, that might not seem necessary. However, I am sure that the Minister appreciates that, under Clause 41, in the event of non-compliance by an individual criminal sanctions might follow. That is a serious matter for individuals who otherwise might have had no contact with the criminal law. We believe that in this complicated area of the law it is desirable that they should at least have the opportunity of taking their own legal advice and of discovering their rights and obligations.

A further amendment proposes that the written authorisation referred to should state the purpose for which the investigation is being made and the penalties for failing to comply with the request. A number of the amendments cover the issue of legal advice, but the broad proposition is that the investigation when it starts is not a criminal investigation. It is an investigation for competition law purposes, which is perfectly reasonable. However, at a later stage of the proceedings an individual might find himself subject to legal sanctions. We believe that the powers in the Bill are insufficient and there are insufficient safeguards for the individual. I beg to move.

Lord Ezra

My Lords, I support this series of amendments mainly because it would bring the wording of the Bill more into line with the wording, of EU legislation. The Government state that the main purpose of this legislation is precisely to achieve that. That would apply in this case and therefore I hope that the amendments will be agreed to.

4.30 p.m.

Lord Kingsland

My Lords, the Minister will be aware that a large number of those amendments which were tabled in Committee to Clauses 25, 26, 27 and 28 have been retabled. They were gone through in great detail in Committee. I trust that the Minister will be relieved to hear that they will not be subject to the same detailed investigation again today, at least not from the Opposition Front Bench.

However, I should like to trespass on the Minister's time to make a general statement about this series of amendments. He will recall that the matter was touched on in the Opposition's winding-up speech on Second Reading and he will know that the context in which the amendments are placed is the procedural regime set up, first, by the European Community and, secondly, by the human rights convention soon to be incorporated into our law if Her Majesty's Government have their way in another place.

Under the Bill, powers given to the OFT are draconian. The Minister responded in only a minor way in the revised Bill which he has produced for Report stage. It is likely that when the OFT exercises those powers, it will be frequently subject not only to appeals to the tribunal but also to actions for judicial review.

It is a debatable point as to whether Clause 58 incorporates into the procedural rules of the Bill the same procedural safeguards which have already been laid down by the European Court of Justice in Luxembourg. However, there can be absolutely no doubt whatever that once the Human Rights Bill becomes law in this country the safeguards laid down by that Bill will apply to any action taken by the OFT. In looking at those procedures and in applying the general doctrines of proportionality and fairness, the Minister will find that the standards required by our courts are higher than those which he has inserted into the Bill.

Therefore, I trust that the Minister will look very carefully at this and subsequent series of amendments to these clauses, bearing in mind the consequences of falling below that standard.

Lord Simon of Highbury

My Lords, as the noble and learned Lord, Lord Fraser, observed, this is a large group of amendments and included in it are government amendments, and I should like to try to find a way through all of them. The powers of the Bill are those necessary to ensure a competitive marketplace. I am always careful about the use of the word "draconian". I believe that we must have effective competition in the UK market and in the European marketplace. Our purpose is to achieve that in the most consistent way possible.

The Government have listened carefully to the points made in Committee, and indeed, as has been stated, have come forward with amendments to address some of the concerns expressed. We do not accept all the points raised and I shall endeavour to explain why. First, I take Amendment No. 85. That repeats an amendment tabled in Committee by the noble and learned Lord, Lord Fraser, and the noble Lord, Lord Kingsland. That was considered at length in Committee (Official Report, 17/12/97; col. 376) and I see nothing new in the circumstances now to cause us to reconsider the matter.

The amendments proposed would place an impossible burden on the investigator; for example, in respect of the requirement to specify the grounds for considering that a specified document relates to the investigation. Such a requirement would clearly only have the effect of frustrating the investigation. Specifying the conduct being investigated is, we believe, better done in the government amendment which we have tabled.

Amendments Nos. 95A, 95B and 109A were also debated and rejected in Committee for similar reasons. They limit the director's power to ask for documents and information held on computer and, effectively, explanations of them in relation to documents and information he has already considered relevant and had required by notice. We see no reason to alter our view on that.

In speaking to Amendment No. 86, I should like to cover also Amendments Nos. 93, 94, 99 and 138. In Committee we considered a number of amendments aimed at requiring information to be given to the undertaking which is under investigation. While certain information would be given during the investigation as a matter of ordinary practice, we undertook to consider amendments to require the undertaking to be given notice of the subject matter and the purpose of the investigation and what are the penalties for non-cooperation with an investigation. Having reflected carefully on the debate, I am satisfied that it is right to amend Clauses 26, 27 and 28 to give legal effect to and to provide for those matters. Undertakings should be told of the nature of the investigation they are facing. I am grateful to the noble and learned Lord, Lord Fraser, and the noble Lords, Lord Ezra, Lord Kingsland and Lord Lucas, for the points they raised in that regard. They have been taken into account.

These amendments require the relevant information to be given in each instance when investigatory powers are exercised. Therefore, they will cover requirements under Clause 26, when premises are entered without a warrant under Clause 27, and when they are entered with a warrant under Clause 28. Those are along the lines of similar requirements in EC Regulation 17/62 which governs the investigations by the EC Commission into suspected infringements of Articles 85 and 86.

Amendment No. 99 is a technical correction to ensure consistency in the use of the term "investigating officer".

The points in Amendments Nos. 87, 88 and 82 are covered fully in government amendments.

Amendment No. 90 addresses the question of the right of being afforded reasonable time to seek legal advice. We went over that ground fairly extensively in Committee. That is an area in which I do not accept that we should go as far as the amendment suggests. In Committee I explained the regime which would apply under the Bill. I added that the European Court has recognised the right to legal representation as one of the rights of defence but not that an undertaking is entitled to delay unduly the commencement of an investigation while a company is awaiting its legal adviser.

Therefore, I expect the director general to follow Commission practice in conducting his investigations. Clause 58 makes provision for EC jurisprudence generally to be imported into our domestic regime and also for the director general to have regard to Commission statements. Therefore, I believe that we have covered the ground already in our own statements made in Committee and in the amendments which we have tabled.

I do understand the implications that the noble Lord, Lord Kingsland, has put to us about the future development of UK law. I understand that and naturally, as that develops, the jurisprudence will develop in relating the two sets of legal bases. But the fact here is that we have, as I said, within our amendments relating to this Bill attempted to follow the principles of Clause 58 in bringing across the EC jurisprudence on competition matters, and I am satisfied that we have done that according to the structure that we require for competition in the UK market. On that basis, I am not as yet convinced that we need to bring forward further amendments than those we have already tabled to take account of the position debated in Committee.

Lord Fraser of Carmyllie

My Lords, I am grateful to the Minister for his full reply on this rather complicated set of amendments. I thank him because I believe that he has, in the main, answered most of the concerns that we expressed. He will no doubt appreciate that it is quite complicated to fit them all into place. I look forward to having an opportunity to read the Bill before Third Reading to ensure that we have covered all that we wish to cover.

I was interested to hear the Minister pray is aid Clause 58 on the question of legal advice. Without in any sense warning him, I have no doubt that we shall have a detailed debate on that clause when we reach that stage. Again, we shall reflect on what the Minister said about legal advice. I believe it still has some attraction to us that there should be some express indication of it. However, as the Minister responsible for the Bill has said at the Dispatch Box that the issue of legal advice is part of the European jurisprudence that he would expect to be followed, that may be sufficient for our purposes. As I said, I shall reflect on that aspect of the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Haskel moved Amendment No. 86:

Page 13, line 15. at end insert—

("(2A) A notice under subsection (2) must indicate—

  1. (a) the subject matter and purpose of the investigation; and
  2. (b) the nature of the offences created by sections 41 to 43.").

On Question, amendment agreed to.

[Amendment No. 87 had been withdrawn from the Marshalled List.]

[Amendments Nos. 88 to 90 not moved.]

Clause 27 [Power to enter premises without a warrant]:

Lord Haskel moved Amendment No. 91:

Page 13, line 33, leave out ("(or by an officer acting on his behalf under section 25(2))").

On Question, amendment agreed to.

[Amendment No. 92 not moved.]

Lord Simon of Highbury moved Amendment No. 93:

Page 13, line 37, leave out from ("given") to end of line 38 and insert ("to the occupier of the premises a written notice which—

  1. (a) gives at least two working days' notice of the intended entry;
  2. (b) indicates the subject matter and purpose of the investigation; and
  3. (c) indicates the nature of the offences created by sections 41 to 43.").

On Question, amendment agreed to.

4.45 p.m.

Lord Kingsland moved Amendment No. 93A: Page 13, line 40, leave out ("a reasonable suspicion") and insert ("reasonable grounds for belief").

The noble Lord said: My Lords, I believe that the Minister's amendment meets my concern on this matter, if he agrees with me that a "reasonable suspicion" is to be interpreted as "reasonable grounds for belief"; in other words, the test is an objective test. I beg to move.

Lord Haskel

My Lords, we looked at the implications of the phrase "reasonable grounds to believe" as against "reasonable grounds to suspect" extensively in Committee, especially in the context of the basic trigger for the investigation powers in Clause 25 and in relation to the waiving of notice requirements where there is entry of premises without a warrant.

The debate has caused us to look again very carefully at the provisions of the Bill. As a result, I have come to the conclusion that there is an unjustifiable anomaly in Clause 28 which should be corrected. Clause 28(1) of the Bill provides for the circumstances in which a warrant may be obtained for the entry and search of premises in the course of an investigation. Essentially these are as follows: first, where there may be documents on premises, which have been required to be produced but have not been produced; secondly, where there may be documents on premises which, if they were required to be produced, might be concealed, removed, tampered with or destroyed; and, thirdly, where there may be such documents on premises, production of which could have been required and an investigating officer has attempted to enter the premises but has been unable to do so. In my view, the appropriate test in each case should be one of "reasonable suspicion" that these matters are so.

The director general has made representations to us to ask that the test should be "reasonable suspicion". I am also satisfied that an investigation by the director general would be handicapped by leaving the Bill unchanged.

Amendment No. 104 is grouped with this amendment. It is a consequential amendment which conforms the language of Clause 28(1)(b) to that in paragraphs (a) and (c). I believe that the Bill should be corrected and, therefore, will wish to move that amendment at a later stage.

Having explained our view on the appropriate test to be applied in this particular limb of Clause 28(1), it will come as no surprise to the House to hear that we do not favour the consequences of the string of amendments which have been tabled by noble Lords with this amendment. We discussed this at length on Second Reading and in Committee and we believe that the reasons for applying the test of "belief' are compelling. I therefore ask noble Lords to withdraw their amendments.

Lord Kingsland

My Lords, on the assumption that I have understood the noble Lord correctly, I willingly beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Lord Kingsland moved Amendment No. 93B: Page 14, line 2, after ("25(1)(b)") insert ("and the giving of notice in accordance with subsection (1) would be likely to result in that party or undertaking concealing, destroying or tampering with any document specified in a notice under section 26(2)").

The noble Lord said: My Lords, this amendment was moved by the Opposition in Committee. I have not noticed any reaction from Her Majesty's Government in the revised Bill for Report. In my submission, this is an important amendment because the exemption given by Clause 25(1)(a) and (b) for acting without a warrant is a large exemption and ought to be qualified in the way set out in the amendment. I beg to move.

Lord Simon of Highbury

My Lords, the right to make unannounced visits is an important weapon in the director general's armoury. His powers must be sufficient in the worst cases of covert cartels to enable him to obtain all documents relevant to his investigation into whether there has been an infringement of the prohibitions.

The proposed amendment would increase the threshold to be crossed before the director general has an unannounced right of entry. At present, under the Bill, if he has a reasonable suspicion that a prohibition has been infringed, he could make unannounced visits if the premises in question are occupied by an undertaking whose conduct he is investigating or if he has reasonable suspicion that this is so.

Amendment No. 93B would increase the risk that the giving of notice would enable an undertaking to prepare in advance for the director's investigation and make it more likely that relevant documents would be hidden, tampered with or destroyed. How could the director establish in advance that the giving of notice would be likely to have the result of the documents being tampered with or destroyed? How could he establish that without making an unannounced visit in the first place?

The practical result of the amendment will be to create a high hurdle before unannounced entry. It will be the same as that which exists under Clause 28 for obtaining a warrant. We believe that it is right to give the director the power to make surprise visits where the undertaking concerned is a suspected infringer. I therefore urge the noble Lord to withdraw his amendment because we are maintaining the same position, as he rightly observed, that we did when we discussed it at Committee stage.

Lord Kingsland

My Lords, I thank the Minister for his reply. However, I cannot resist expressing my disappointment that he has failed to move on the issue. The amendment covers precisely those circumstances that he fears. In my submission, it would not be difficult for the director to pass the test laid down by the amendment, if indeed he moved within the two day period. However, I do not propose to press the amendment. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Haskel moved Amendment No. 94:

Page 14, line 4, at end insert—

("(3A) In a case falling within subsection (3), the power of entry conferred by subsection (1) is to be exercised by the investigating officer on production of—

  1. (a) evidence of his authorisation; and
  2. (b) a document containing the information referred to in subsection (2)(b) and (c).").

The noble Lord said: My Lords, we spoke to this amendment when we debated Amendment No. 85. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 95 and 95A not moved.]

Lord Kingsland moved Amendment No. 95B: Page 14, line 9, leave out ("relates to any matter relevant") and insert ("is necessary").

The noble Lord said: My Lords, the amendment simply tightens up the criteria by leaving out, relates to any matter relevant", and inserting, is necessary". It is an amendment made in other parts of the Bill where we think that the discretion given to the director is unnecessarily wide. I beg to move.

Lord Simon of Highbury

My Lords, we may be indulging in a significant tightening and untightening of bolts. I seem to be doing most of the untightening.

We considered similar amendments in Committee. We took the clear view (at cols. 396 and 411 of Hansard 17th November) that seeking to impose the objective test that documents should be "necessary" to an investigation in order that they can be required to be produced, would serve to do no more than frustrate the investigation. We remain entirely of that view, and I hope in understanding our position noble Lords are able to withdraw the amendment.

Lord Kingsland

My Lords, the Minister will not be surprised to learn that I am also disappointed in that reply. However, I am rapidly becoming a realist in these matters. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Speaker (Lord Strabolgi)

My Lords, if Amendment No. 95C is agreed to, I cannot call Amendments Nos. 96 and 96A.

[Amendments Nos. 95C to 97 not moved.]

Lord Kingsland had given notice of his intention to move Amendment No. 97A: Page 14, line 12, at end insert— ("provided that the person is afforded sufficient time to seek legal advice before complying with any such requirement").

The noble Lord said: My Lords, this matter has already been dealt with by the Minister in another context. Having heard the noble Lord's reply in that context, we know what it will be in response to this amendment. In those circumstances, I shall not move the amendment.

[Amendment No.97A not moved.]

[Amendments Nos. 97B and 98 not moved.]

Lord Haskel moved Amendment No. 99: Page 14, line 16, leave out ("named") and insert ("investigating").

The noble Lord said: My Lords, we spoke to this amendment when we debated Amendment No. 85. I beg to move.

On Question, amendment agreed to.

The Deputy Speaker

My Lords, if Amendment No. 99A is agreed to, I cannot call Amendment No. 99B.

[Amendments Nos. 99A to 101 not moved.]

Clause 28 [Power to enter premises under a warrant]:

The Deputy Speaker

My Lords, if Amendment No. 102 is agreed to, I cannot call Amendments Nos. 102A or 102B.

Lord Haskel moved Amendment No. 102: Page 14, line 20, leave out from beginning to ("that") in line 21 and insert ("On an application made by the appropriate person to the court in accordance with rules of court, a judge may issue a warrant if he is satisfied").

The noble Lord said: My Lords, I beg to move Amendment No. 102 and speak to government Amendments Nos. 110, 114, 115, 137, 199, 201, 202, 204, 205 and 207 and Amendments Nos. 102A, 102B, 110A, 110B, 114A, 114B, 199A and 202A.

In the Second Reading debate and in Committee we discussed whether the function of issuing warrants authorising the entry of premises should be a matter for a High Court judge rather than for a justice of the peace. Amendments to that effect were tabled by the noble and learned Lord, Lord Fraser, and the noble Lord, Lord Kingsland. I am grateful to them for having raised this point.

The Government have listened very carefully to the points made and we have concluded that it would indeed be right to make this change. Amendments Nos. 102, 110 and 114 achieve this. The definition of the relevant court for each of England and Wales, Scotland and Northern Ireland is now to be found in the interpretation section (Clause 57). I might add at this point that the noble and learned Lord, Lord Fraser and the noble Lords, Lord Kingsland and Lord Lucas, yesterday again tabled their original amendments—now numbered 102A, 102B, 110A, 110B, 114A, 114B, 199A, 202A. I can add no more than that the Government's amendments will make the change to a High Court judge as I have indicated. For the reasons I have also previously indicated, we do not think it appropriate that the president of the tribunal should exercise this function.

Lord Fraser of Carmyllie

My Lords, perhaps I may genuinely thank the Minister for moving on this issue. If I may say so, it is an extremely wise action. It seemed to us that a justice of the peace somewhere in the United Kingdom might find it extremely difficult to exercise his powers correctly in deciding whether to grant a search warrant. I am grateful that this power has been given exclusively to a senior member of the judiciary in whichever jurisdiction it happens to be.

Perhaps I may refer to the amendment in my name, Amendment No. 111. It has been somewhat aggressively grouped with the primary amendment relating to justices of the peace. I shall be grateful for an explicit response from the Minister.

He will observe that in the second paragraph of the amendment the point is again made about, reasonable time to contact their legal representatives before exercising any of the powers conferred by subsection (2)". If the Government are of the view that such an opportunity should not be given, it would be helpful if we could discover their reasoning. I suspect that we know what it is, but it would be just as well to hear from the Minister.

5 p.m.

Lord Haskel

My Lords, yes. Amendment No. 111 is in this grouping. We have already discussed the matters raised by that amendment. In the light of the Government's amendments dealing with entry to empty premises, I hope that the noble and learned Lord will be prepared to withdraw that amendment since the matter has been dealt with.

On Question, amendment agreed to.

The Deputy Speaker

My Lords, Amendments Nos. 102A and 102B are pre-empted.

Lord Simon of Highbury moved Amendment No. 103: Page 14, line 22, leave out ("believing") and insert ("suspecting").

The noble Lord said: My Lords, we covered this matter earlier in the debate. I beg to move.

On Question, amendment agreed to.

Lord Haskel moved Amendment No. 104: Page 14. line 27, leave out ("it is reasonable to suspect") and insert ("there arc reasonable grounds for suspecting-).

The noble Lord said: My Lords, this amendment was spoken to when we debated Amendment No. 93A. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 104A and 104B not moved.]

Lord Kingsland moved Amendment No. 104C: Page 14, line 38, leave out from ("named") to end of line 40 and insert ("senior officer of the Director who is an appropriately qualified official in the division of the OFT responsible for investigations, and other named senior officers with appropriate qualifications and from the same division to accompany him—").

The noble Lord said: My Lords, during the course of our debate at Second Reading, a certain amount was said about the director general being in the position of investigator, judge and jury. Here, we have a clause dealing with an official who will have investigatory powers. The expression used in the clause is "a named officer". We have sought in this amendment to be more specific about the category of official who is tasked. The reason is simply this. Up to now the OFT has had a kind of preliminary investigatory role. Now that its powers are to be greatly extended, it seems to us extremely important that effective Chinese walls are built within the organisation so as to give confidence to the entrepreneurial community. It is important for a company being investigated to be sure that those officers in the OFT who conduct investigations do not thereafter arbitrate on questions of, for example, penalties. That is the reason why the kind of officer and the task that he undertakes in the OFT are clearly set out in our amendment. I beg to move.

Lord Simon of Highbury

My Lords, I am rather surprised that we are returning to this debate since the matter was dealt with thoroughly in Committee. However, I am happy to go over the ground again.

I am aware from the debate in Committee that one of the fears raised about the investigation powers under the Bill was that difficult and sensitive matters involved in an investigation might be handled by junior or inexperienced or untrained personnel in the offices of the director or sectorial regulators. I appreciate that Amendment No. 104C seeks to address that concern by specifying qualifications or rank. However, I do not think that we can sensibly provide for such matters in a statute. How would "senior" be defined? What qualifications would be regarded as "appropriate" to the work of investigating? We have of course already debated on Report the subject of delegation in relation to the amendments to Clause 25.

Amendment No. 104C would additionally require the director and sectoral regulators to separate their organisations internally and create a discrete investigation division. This Bill, like many others, creates functions for the offices concerned. I believe it would be undesirable and impractical to go beyond providing the statutory framework and try to go further and provide for the internal organisation of those offices. As I said in Committee, we have to accept that there needs to be a delegatory capacity in the management sense in organising complex offices in the administrative terms to which we refer. The directors will have statutory functions and duties to perform under the terms of the Bill. They will themselves have to ensure that their staff and organisation are both adequate for those purposes. I therefore ask the noble Lord to withdraw his amendment.

Lord Kingsland

My Lords, does the Minister agree that an official exercising investigatory powers should also exercise adjudicatory powers in the matter that he is investigating?

Lord Simon of Highbury

My Lords, the Office of Fair Trading already has an investigative unit, the Cartels Task Force, which has had some successes within the limitations of the current legislative framework. That would provide the organisational base for the Office of Fair Trading's investigation function in the new Bill. However, we do not believe it right to compartmentalise the Office of Fair Trading in its exercise of the functions in the Bill in respect of investigating and making decisions. That would be wasteful of resources and would require duplication of effort.

Lord Kingsland

My Lords, the Minister will not be surprised to learn that I find that reply deeply disappointing. I put him on notice now that it is a matter to which we shall wish to return at Third Reading.

Lord Borrie

My Lords, before the noble Lord sits down, is he aware that in a related field within the Office of Fair Trading—under the Consumer Credit Act,—for the past 24 years there have been investigating officers and adjudicating officers. They have been kept separate. But that provision is not written into the legislation. It is to be found only in the administrative arrangements within the office itself.

Lord Kingsland

My Lords, I am most grateful to the noble Lord for that piece of information. However, on reflection, he ought to accept that that reinforces the point that I made to the Minister. If that is the practice in that field, why should it not also be the practice in the field of competition law? If the practice has been continued for so long, is it not time that it was enshrined in our own statute law? I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Kingsland moved Amendment No. 104D: Page 14, line 41, leave out ("such force as") and insert ("no more force than").

The noble Lord said: My Lords, this amendment is as much about constitutional tone as substance. It may be that the net effect of the expression, such force as is … necessary", is no more severe than the net effect of the expression, "no more force than is necessary". However, in my submission the expression that Her Majesty's Government have chosen to use is foreign to our constitutional tradition. It smacks of an autocratic rather than a constitutional authority. My amendment is not intended to alter the substance of the clause but merely the way in which the powers of the director are expressed. In those circumstances, I should be much obliged if the Minister would reconsider his decision not to move on this matter. I beg to move.

Lord Elton

My Lords, can the Minister confirm that this subsection refers only to the use of force for the purpose of entering premises and confers no right to use force once the premises have been entered? Perhaps he can tell us what will happen if, having broken down the front-door, those entering the premises find a series of other doors, behind one of which is the evidence they are looking for, or if someone within seeks to oppose their progress down the corridor?

Lord Simon of Highbury

My Lords, perhaps I may speak first to the amendment and then see whether I can find the wit to tackle the many doors along the corridor. As I said to the noble Lord, Lord Kingsland, in Committee, we entirely agree with the principle that, on those rare occasions when force is used to enter premises, no one should be authorised to use more force than he reasonably needs to use in order to do so. En passant, I believe that that covers the point about force being used to enter the premises. As I went on to say, that is the effect of the Bill as drafted. While I understand the concern that motivates the noble Lord's amendment, I do not believe that it would change the effect of the Bill. The officer entering the premises will not be entitled to break down the door if those inside are prepared to open it for him. Such force as is reasonably necessary is what is needed to gain access and no more.

I agreed to think carefully about the drafting, the tonal question, which I believe the noble Lord, Lord Kingsland, raised again. I said: I shall think very hard about this, because if this is the right language to use it would be inappropriate for me, as the common man, to question the difference between the two alternatives".—[Official Report, 17/11/97; col. 408.] As part of my reflections, we searched the statute book. This revealed 62 cases in English law of the words "such force as is reasonably necessary" and none of the words "no more force than is reasonably necessary". On that basis, I guess the vote is on our side in terms of tone and even more so in terms of research.

In reply to the subsidiary question, I confirm that it is only force used for entering which is referred to, as I indicated half-way through the first part of my answer, and that every subsequent door, if closed, could be broken down to enter the premises. Force would not be used against persons.

Lord Kingsland

My Lords, I thank the Minister for his reply. I am surprised by its substance but delighted to hear that, in moving my amendment, I was suggesting an improvement in our constitution, which I had hitherto always thought perfect. I believe that the additional question addressed to the Minister by my noble friend Lord Elton with regard to force against persons was not addressed in his reply.

Lord Simon of Highbury

My Lords, I did say that there would be no force used against persons, only against the subsequent doors in the corridor if they were closed.

Lord Elton

My Lords, may I ask where it is provided that the convention is that one can break down a door but not break a person's nose in the process? I realise that the noble Lord will probably wish to reply to this question after the debate by some other means.

Lord Simon of Highbury

My Lords, perhaps I may take advice on that point and respond at greater leisure. I suppose it depends how close one stands to the door. But that may not be the appropriate answer.

Lord Kingsland

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 104E not moved.]

Lord Simon of Highbury moved Amendment No. 105: Page 14, line 43, leave out ("possession or) and insert ("copies of, or extracts from,").

The noble Lord said: My Lords, I beg to move Amendment No. 105 and speak to Amendments Nos. 106, 108, 111A and 112. We listened carefully to the concern expressed in Committee by the noble Lords, Lord Kingsland and Lord Ezra, that the taking of original documents could be extremely inconvenient for a company which is the subject of an investigation. We undertook to reflect upon the points made with a view to making it clear that the taking of originals should be a last resort.

I am grateful to the noble Lords for raising this issue. I am clear that powers of seizure are necessary as a last resort to deal with serious cases of obstruction. It may not always be possible to copy documents. Seizure is a serious matter and it is right to ensure that there are appropriate safeguards in place. Having reflected on the debate in Committee, I agree that there is a case for strengthening the safeguards.

Amendment No. 106 limits the powers of seizure and confines them to circumstances where seizure is necessary to prevent them being destroyed or interfered with or where it is not reasonably practical to take copies of them on the premises concerned. Amendment No. 105 secures the reordering suggested by the noble Lord, Lord Kingsland, putting the taking of copies first, further emphasising that seizure is a last resort. Amendment No. 108 is a consequential amendment. I beg to move.

Lord Ezra

My Lords, I wish to speak to Amendment No. 112, which is grouped with Amendment No. 105. The point of the amendment is to ensure that, where original documents have been seized—which can only be for a period of three months—the enterprises concerned can have access to them, if need be, during that period. It seems to me that that is a reasonable additional safeguard.

Lord Fraser of Carmyllie

My Lords, the noble Lord has spoken to Amendment No. 112, to which I also have my name. We welcome the amendments that the Government have tabled, Amendments Nos. 105 and 106. Having regard to Amendment No. 106 and the proper emphasis which the Government now accord to the desirability of taking copies rather than the original documents, if that can be achieved, it seems to me that what is proposed in Amendment No. 112 ties in with that approach.

As I understand the position, the investigating officer will go in and will be entitled to take copies of documents. That is what he must address his mind to first: "Can I achieve my purposes by taking copies?". If that is the case, he does so. If he cannot do that, he takes the originals. If the documents seized were not capable of being copied, it may be difficult for the individual or the undertaking if there is no access to the documents while they are under investigation.

If the Government recognise the desirability and good sense of people being able to retain the originals and that the originals should be taken away only if they cannot be dealt with in any other fashion, perhaps the amendment is not the most appropriate way to achieve the Government's aim. In such circumstances it would be appropriate for there to be at least access to the documents. No one is asking for their immediate return, just that there should be some access to them while the investigation is taking place. With those few words, and a request for further explanation from the Government, I support the noble Lord, Lord Ezra.

Lord Haskel

My Lords, noble Lords put their finger on an important point; that is, that it would be wrong for the Bill to try to prescribe in great detail what should happen in every conceivable circumstance. The Government have already come forward with amendments to the Bill to ensure that seizure is the last resort. But we must allow reasonable flexibility in the arrangements provided in the Bill.

If documents have been taken in the limited circumstances in which they are now permitted, we should leave it to the director to behave reasonably and to allow access, where that is necessary, to the company concerned. I am confident that the director will behave reasonably in this and other important areas. I am sure that that confidence is shared by the noble Lord, Lord Ezra.

Were we to start from the assumption that the director would always try to behave unreasonably and make provision in the Bill to prevent it, we would end up with an unworkable Bill and an unworkable system.

I therefore invite the noble Lord to put his trust in the good sense of the director.

On Question, amendment agreed to.

The Deputy Speaker

My Lords, if Amendment No. 106 is agreed to, I cannot call Amendment No. 106A.

Lord Haskel moved Amendment No. 106:

Page 14. line 44, leave out from ("(1)") to end of line I on page 15 and insert—

("(bb) to take possession of any documents appearing to be of that kind if—

  1. (i) such action appears to he necessary for preserving the documents or preventing interference with them; or
  2. (ii) it is not reasonably practicable to take copies of the documents on the premises;

(bc) to take any other steps which appear to be necessary for the purpose mentioned in paragraph (bb)(i);").

The noble Lord said: My Lords, I spoke to Amendment No. 106 earlier. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 106A and 107 not moved.]

Lord Haskel moved Amendment No. 108: Page 15, line 2, leave out ("such document") and insert ("document appearing to be of a kind mentioned in subsection (1)").

The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 109 and 109A not moved.]

The Deputy Speaker

My Lords, if Amendment No. 110 is agreed to, I cannot call Amendment No. 110A.

Lord Haskel moved Amendment No. 110: Page 15. line 10, leave out from second ("the") to first ("that") in line 11 and insert ("judge is satisfied").

The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 110A to 111A not moved.]

Lord Ezra had given notice of his intention to move Amendment No. 112: Page 15. line 24, at end insert ('provided that such steps which appear to be necessary shall be taken to provide the person from whom such documents have been taken with access to them whilst they are in the possession of the Director.").

The noble Lord said: My Lords, I heard what the noble Lord, Lord Haskel, said in relation to this amendment. While I am prepared to accept that the director would always act reasonably, nonetheless it seems to be reasonable guidance to give to him. Perhaps therefore the Government will reflect on this minor amendment between now and Third Reading. I shall not now move the amendment.

[Amendment No. 112 not moved.]

[Amendment No. 112A not moved.]

Lord Haskel moved Amendment No. 113: Page 15, line 27, leave out from ("behalf-) to end of line 28.

The noble Lord said: My Lords, I spoke to Amendment No. 113 with Amendment No. 84. I beg to move.

On Question, amendment agreed to.

Lord Haskel moved Amendment No. 114: Page 15, line 29, leave out subsection (9).

The noble Lord said: My Lords, I spoke to Amendment No. 114 when we debated Amendment No. 102. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 114A and 114B not moved.]

Lord Haskel moved Amendment No. 115: After Clause 28, insert the following new clause—