HL Deb 21 October 2004 vol 665 cc973-5

4 Schedule 2, page 56, line 16, at end insert— (9A) For the purposes of this section, information obtained by an investigator in consequence of the exercise of his powers under section 453A includes information obtained by a person accompanying the investigator in pursuance of subsection (4) of that section in consequence of that person's accompanying the investigator.

5 Page 56, line 32, leave out paragraph 20 and insert—

"20 (1) Section 451A (disclosure of certain information) is amended as follows.

(2) For subsection (1) substitute—

"(1) This section applies to information obtained—

  1. (a) under sections 434 to 446;
  2. (b) by an inspector in consequence of the exercise of his powers under section 453A."

(3) After subsection (5) insert— (6) For the purposes of this section, information obtained by an inspector in consequence of the exercise of his powers under section 453A includes information obtained by a person accompanying the inspector in pursuance of subsection (4) of that section in consequence of that person's accompanying the inspector. (7) The reference to an inspector in subsection (2)(b) above includes a reference to a person accompanying an inspector in pursuance of section 453A(4).

Lord Sainsbury of Turville

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 4 and 5. The Government introduced those two amendments on Report in the other place to address a small but significant shortcoming identified by the Opposition spokesman in Committee. They deal with information obtained by an individual accompanying an inspector or investigator on to premises.

The background is that an inspector or investigator, using the new power to enter and remain on premises contained in Clause 21, may be accompanied by one or more other people. For example, an investigator might be accompanied by a technical expert who can assist with the copying of information from a computer or in some cases an investigator might need an interpreter. It is possible that such an accompanying person might independently acquire information while on the premises.

However, as the Opposition pointed out in the other place, unless these amendments are agreed to, any information which such a person acquires, and the inspector or investigator does not, will not be statutorily protected in the same way as information obtained by an inspector or investigator. That was an oversight. The policy is that all information should be protected, no matter who might acquire it.

So new Clause 449 applies express protection for information obtained by an investigator with onward disclosure restricted to certain statutory gateways that allow disclosure in specified circumstances or to specified individuals. Amendment No. 4 amends new Clause 449 to extend that protection and the gateways to information obtained by an individual accompanying an investigator.

Information obtained by inspectors on a visit to premises is dealt with differently: the Secretary of State is expressly permitted to disclose such information to a specified person or for a specified purpose. She can authorise or require an inspector to do the same. The specified people and purposes are the same as for disclosure under Clause 449. Amendment No. 5 would ensure that information obtained by an individual accompanying an inspector is treated in the same way.

I trust that noble Lords accept these amendments, particularly given that they respond directly to an omission identified by the Opposition.

Moved, that the House do agree with the Commons in their Amendments Nos. 4 and 5.—(Lord Sainsbury of Turville.)

Lord Hodgson of Astley Abbotts

My Lords, the Minister will not be surprised that we support these amendments given their prominence by my colleague Andrew Mitchell in another place. We are grateful to the Government for having brought them forward.

Before we wave this area goodbye, perhaps I may take just one minute to emphasise a single point that still concerns us very much. The amendment relates to information gained under the provisions of Clauses 19, 20 and 21, as numbered in Bill No. 142. There are very important changes brought about by those clauses which, in our view, have considerable implications for civil liberties. We remain very concerned about the Government's proposal—line 24, page 25, Clause 21—to use the word "thinks" as opposed to the phrase "reasonably believes". It is the phrase "reasonably believes" that appears in the earlier Companies Acts.

We have discussed that at length, but all the legal advice that we have had before, during and after our debates emphasises the legal view that there is a clear legal difference between "thinks" and "reasonably believes". In summary, the first is a subjective test; the second is an objective one. Therefore, in our view, the Government here are stealthily—maybe they are not aware of it—taking more powers to themselves.

2.15 p.m.

I shall not weary the House with the legal discourse, but merely say that we have been advised that the consequences of the judgment reached in Liversidge v Anderson in 1942 and the subsequent judgments that reflect that case confirm that there is a clear legal distinction between "thinks" and "reasonably believes".

I accept that our proposal has been rejected by the Government here and in another place. But as the Bill leaves this House, I want to put on the record our grave misgivings on this issue and our disappointment that the Government could not bring themselves to make that one-word change.

The noble Lord, Lord Sharman, was kind enough to support me in my remarks on company law reform. I hope that he will now forgive me if I say that it was very disappointing that the Liberal Democrats too were so cavalier about our civil liberties when we voted on this issue.

On Question, Motion agreed to.