Miss Johnson: Perhaps I can come back to that point in a moment. In Scotland, the Lord Advocate is responsible for prosecutions—I realise that the hon. Gentleman is well aware of that—and he will consider a report from the OFT carefully before taking any decision.
It was a matter of interest this morning how many Scottish qualified lawyers are employed at the OFT. We do not have the figures and it will take some time to get them, but the hon. Gentleman will agree that the real issue is that the OFT has access to Scottish legal advice—and it certainly does. It has access to the advice of the officers and solicitors of the Advocate-General. A long tradition exists of making such advice available to all UK Government bodies at an early stage. Good communication channels with the Crown Office are also open. The Crown Office can provide the OFT with immediate practitioner advice on Scottish legal matters at any stage of an investigation.
The OFT is also a named prosecutor to allow for the possibility that it may be appropriate for it to take on a prosecution role in future. The prior consent provision is necessary to enable the OFT to prevent any prosecution, by a third party, of individuals who have been granted leniency. The reason for the phrase
is to allow private prosecutions and to close down other options.
I have explained that we envisage a prosecution being brought by the SFO, except in Scotland. Third-party prosecutions may normally be brought for any offence where the legislation does not exclude them. The amendment would restrict the bringing of prosecutions for the cartel offence to the SFO, but I do not believe that there are grounds for doing so. To ensure the proper working of the leniency regime, it is important that a private prosecution can be brought only with the OFT's consent. I have now said quite a lot about the leniency provisions, so I shall not say anything further at this stage.
Mr. Carmichael: I may be missing something blindingly obvious. The Under-Secretary keeps going on about private prosecutions, but I do not see how there could be private prosecutions for these offences, because they may be instituted only under the two options in the provision.
Miss Johnson: I will come back to that in a moment, if I may. I should like first to deal with the point about scrutiny by surveillance commissioners. The Regulation of Investigatory Powers Act 2000 requires that there be prior approval by a surveillance commissioner. Someone alleged that the decision would be by the OFT, but that would not normally be the case. It would happen only in an urgent case, which I think would be very rare in a cartel investigation. In those circumstances, however, there is a provision in the 2000 Act for the authorising officer—in this case, the OFT chairman, I guess—to issue a notice that grants authorisation and explains the urgency that justifies going ahead. Then the surveillance commissioners, who exist under that Act, would be there to scrutinise immediately after the fact in any event.
Prior scrutiny is the norm under the provisions. As I have said, I expect matters of urgency to be very rare. Complaints and appeals can be directed to the investigatory powers tribunal set up under the 2000 Act. There are plenty of safeguards. In some circumstances, however, it will be necessary to resort to the measure that I have described.
I shall now deal with the meaning of the phrase
First, it allows private prosecutions, and secondly, it enables the OFT to close down prosecutions. The point is to permit private prosecutions. I hope that, having heard what I have had to say, Opposition Members will be happy for the amendment to be withdrawn. If not, I urge hon. Members to resist it.
Mr. Waterson: I am content for the moment. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Mr. Djanogly: Before we move on, it is appropriate to say a little more about the clause, if only because we have not discussed subsection (3), for lack of an amendment. Clearly, many issues have been raised about the penalty and prosecution procedures, and I for one am not particularly comfortable with the
Column Number: 186clause. This comes down to the fact that, by attempting to stand tough, we risk hurting the procedures of the courts, undermining human rights and not doing things to the standard that we expect in this country.
The offence in subsection (3) extends to agreements that are implemented, or intended to be implemented, in the United Kingdom. The exception is for agreements made outside the UK that are not implemented in the UK. If I understand that correctly, two UK companies could plot in Paris to implement an agreement in Germany without being criminals. However, they would be criminals if they missed their train and did their plotting in London instead. I would be grateful for the Under-Secretary's clarification.
I understand from the Under-Secretary's comments that the EU Commission has seen the Bill and is happy with it. I would like to know whether it considered the provisions, which would not work in a European-friendly way. What message does it send to foreign companies that our guys can operate cartels abroad, but that anyone operating a cartel here will go to prison? Cartel operations can be blatant, but they can often be complicated, as we discussed. They can also be immensely hard to prove, because what the OFT considers to be a cartel operation may not be seen as such by the companies concerned. If companies discuss international volumes of supply or international prices at a sector conference, at what point does that conversation become price fixing? Under the provisions, a foreign company is eventually likely to decide that it does not like the way things work and will not invest in this country.
Mr. Carmichael: Those remarks prompt me to make a brief observation about subsection (3).
The Under-Secretary was at pains this morning to emphasise that the essence of the defence is the dishonest agreement. It is curious that in subsection (3) the emphasis is differently put on implementation. I appreciate that that will not be fatal to the creation of the offence or the founding of jurisdiction. However, in the interests of completeness and neatness, some reference to the perfection of the agreement would be appropriate.
Miss Johnson: Under the offence, prosecutions may be brought for agreements that are implemented, or intended to be implemented, in the UK. That includes agreements that are reached abroad and intended to be implemented in the UK. However, subsection (3) requires that in those circumstances, some subsequent action must have been taken to implement the agreement in the UK. That action could be no more than a clear instruction by telephone or e-mail into the UK to implement the agreement. It would be for the courts to determine whether such action had been taken. Those are the arrangements envisaged in the clause.
The hon. Member for Huntingdon mentioned other states. We make legislation that impacts on business that is conducted in this country or on matters that relate to this country, so his point would not be relevant to the Bill. It is a bit of a novelty to listen to
Column Number: 187Conservative Members arguing that we are being insufficiently European in our approach.
Question put and agreed to.
Clause 181 ordered to stand part of the Bill.
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