COMMONS AMENDMENT (Hansard, 20 October 1998)

§ Lord Simon of Highbury

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 10, with which is grouped Amendments Nos. 16 to 20 and 40 and 41.

Amendments Nos. 10, 40 and 41 are concerned with an important element of the Bill; namely, that the director should be able to delegate the exercise of his functions under the Bill. It would be wrong and, indeed, impractical to require him to exercise them in person.

It might possibly be argued that the director cannot delegate his powers under Clause 27 in this way to require the production of documents because the power to do so is subject to the issuing of a notice signed by the Director". It could be argued that this expressly required him to act personally and sign the notices.

We do not want there to be any risk that this argument could be successfully advanced. It is our clear intention that this power should be capable of delegation. Accordingly, to put the matter beyond doubt, Amendment No. 10 deletes the reference to the notice being "signed by the Director".

I turn to Amendments Nos. 40 and 41. The Bill was earlier amended in this House to ensure that the director's general power to delegate, under Schedule 1 to the Fair Trading Act 1973, also applied to the domestic investigation function. We need to make the equivalent amendments to the EC investigation provisions so that they operate in precisely the same way. Amendments Nos. 40 and 41 do so by deleting unnecessary references in Clauses 62 and 63 to persons acting on behalf of the director.

Amendments Nos. 16 and 20 are amendments to the power, when the premises of an undertaking are entered during the course of an investigation, to require a person to state the whereabouts of a document. In an "off-site" investigation under Clause 27, where a specified document is not produced, the investigating officer is empowered to require a person to state the whereabouts of that document, to the best of his knowledge and belief". In Clauses 28 and 29 the equivalent power omits that qualification. We consider it desirable to remove that discrepancy and include these additional words, so that if a person is not certain of the exact location of a document but believes it is in a particular place, then he must give that information rather than simply stating that he does not know its whereabouts.

Amendments Nos. 17 to 19 are minor, technical amendments intended to clarify exactly what documents a warrant under Clause 29 of the Bill will authorise an investigating officer to search for, or take possession of or about which an explanation may be required to be given where premises have been entered under the warrant.

Clause 29 sets out three separate circumstances where a warrant may be obtained from a High Court judge enabling an investigating officer to enter premises in this way. As at present drafted, the Bill is unclear whether, when the warrant is issued, the investigating officer is then able to exercise his powers in subsection 29(2)(b), 1373 (c) and (e) only in relation to the category or categories of document which formed the grounds for obtaining the warrant or all of the categories in subsection (1). This amendment makes it clear that these powers relate only to the category or categories of documents which were the basis for obtaining the warrant in the first place.

Moved, That the House do agree with the Commons in their Amendment No. 10.—(Lord Simon of Highbury.)