Enterprise Bill

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Mr. Tony McWalter (Hemel Hempstead): I hope that the hon. Gentleman does elaborate the point a little more because I fail entirely to understand his reasoning. At the moment, I am dealing with a case where a large number of people have alleged that a company is unfit to trade on a wide variety of matters, most of the evidence for which comes from customers and others who have been—one is tempted to say—the victims of its activity. Although there is corroborating evidence from employees—to cite amendment No. 96—it would not be of much use without other evidence from those who are not employees. Equally, I think similar activities, and amendment No. 99, would have the effect of frightening off people from allowing their perception of what has happened to have any real effective airing.

Mr. Waterson: I am grateful for that intervention, but I cannot be as helpful as I would wish in response as I do not know on what basis the company was said to be unfit to trade.

We must be careful about allowing the cartel offence, which will be a serious offence with major criminal sanctions attached, to be misused to attack a company for which other remedies are already available. It may be that the company is unfit to trade because its goods are not merchantable or they never appear, or that it is overcharging for them or using abusive selling methods. Is the hon. Gentleman saying that unless there is prima facie evidence of that company being involved in a cartel—I am happy to give way if the hon. Gentleman can confirm or deny that—

Mr. McWalter: Just to clarify, yes I am saying that.

Mr. Waterson: Then I would have thought that once the OFT has the prima facie information that a cartel offence has taken place, it is perfectly possible to fit our amendment into the clause for the subsequent

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investigation. Our drafting would not necessarily obviate past or present employers from blowing the whistle in the first place, but I am happy to reconsider that.

In amendments Nos. 101, 102 and 105, we are talking about the provision of the right to silence, the right against self-incrimination and the obligation on the OFT to advise people, who are being investigated, of their rights. Amendments Nos. 103 and 106 refer to the entitlement to have a lawyer present. None of the amendments would do anything that would solidly fix the clause into criminal law and procedure. It is up to the Government to accept the proposition for which we have been arguing for what seems like most of our lives but has in fact been only a few hours: it is distracting and ineffective to introduce criminal sanctions.

During the stand part debate on clause 179, I said that one problem is that if one raises the ante by increasing the burden of proof and introducing criminal sanctions, many things will follow. The amendments are perfect examples of that. The Under-Secretary has an uphill task in arguing against them, because they are absolutely what is required under English criminal law and, I suspect, Scottish law. She has a difficult task in arguing that what the amendments cover should not be available in a given situation. What would be the reason for it? People can still end up in prison. Someone who has stolen a car and someone who has been convicted of a telephone theft could still share a cell in the same prison—perhaps they would not be in the same prison, but they would still be in prison, and would be entitled to all the defences, burdens of proof and everything else. That applies as much to someone who is alleged to have stolen a car as to someone who is alleged to have murdered somebody. It is therefore absolutely essential to include safeguards. I would be amazed if the Government disagree.

Mr. McWalter: I must not have made my point sufficiently clearly to the hon. Gentleman, so I rise to consolidate the point more accurately.

I simply do not agree that, during an investigation under any other aspect of criminal law, lawyers are present throughout. That is clearly not the case. Police conduct investigations by sifting witnesses and taking statements from people who allege certain things. Out of that, comes a prosecution case, at which point lawyers become involved. To have lawyers present throughout the investigation would, I repeat, intimidate some people who may have valuable things to contribute. They might be talked out of vouchsafing information if lawyers were always present. In that light, I hope that the hon. Gentleman will reflect that the amendments would not do what he thinks they would.

Mr. Carmichael: I am for the main part content to support the bulk of the amendments. However, one that gives me cause for pause is No. 96. It appears to be overly restrictive in terms of the class of people that it would cover. As I understand it, it would not allow the OFT, for example, to question an employee of a business other than the business with which the person under investigation was associated. It is of the essence

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that there have to be two parties to such an agreement, and it would be sensible to allow the OFT to question employees of both businesses in relation to the person under investigation.

5.30 pm

Mr. Waterson: I should have thought it axiomatic in cartel investigations that it would take two to tango, and at least two companies would probably be investigated. With respect, the practical problem suggested by the hon. Gentleman would not arise because both companies, or perhaps a range of companies, would be under investigation. To take the example of bus companies, both of them would be under investigation and there would be no bar on talking to all their past and present employees.

Mr. Carmichael: That would probably be the case, but one can envisage scenarios in which it would not necessarily be the case. Indeed, the hon. Gentleman's proposed wording would restrict the investigation to a point beyond which it could not be the case, which would be undesirable. I share his concerns, however, about self-incrimination and the right to silence, and from that point of view the rest of his arguments are entirely sensible.

Amendment No. 97 seems to be an entirely sensible suggestion. It would make the scope of both the documents recovered and the investigation conducted at the time much clearer when they came to be examined in court. Whether evidence recovered is admissible in court would also be easily identifiable because it would have been recovered in a fair and transparent way.

Amendments Nos. 98 and 99 are also sensible. I cannot see how we can possibly hope to have legislation that is human rights-proof without a provision such as amendment No. 98. If it is not accepted, will the Under-Secretary tell us whether a person under investigation could acceptably answer a question by simply saying, ''No comment''? We have to be told about that before we can be persuaded that such an amendment is not necessary.

On amendment No. 99, access to legal advice and counsel throughout the course of any interview or disclosure process seems to be very sensible. With respect to the hon. Member for Hemel Hempstead (Mr. McWalter), that is not that alien to current criminal procedures. My understanding is that in England one's entitlement to access to legal advice at the point of questioning is quite strong. Since the implementation of the Scotland Act 1998 and the Human Rights Act in Scotland, there has been greater access to legal advice when, for example, people are questioned in a police station. I should have thought that that is exactly the sort of thing that the Government would have wanted to see in the Bill. At the moment, I find myself in a kind of bizarre wonderland—

Mr. Waterson: Yes, you are a Liberal Democrat.

Mr. Carmichael: Indeed. The hon. Gentleman has noticed: how very perceptive of him. I find myself opposing the Labour Government and supporting the

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Conservatives on a point about human rights and civil liberties.

Mr. McWalter: The hon. Gentleman says that one should be entitled to a lawyer throughout questioning, and I am perfectly happy with that. However, amendment No. 99 states that one should be entitled to have a lawyer present ''throughout the investigation''. An awful lot of investigating takes place before people arrive at the stage of being questioned.

Mr. Carmichael: That is a fair point. The amendment, however imperfectly framed, would give an entitlement that is not in the Bill at present, and that is, I think, very important. The final phrase of amendment No. 99, that

    ''the OFT shall be required to advise'',

provides something akin to a caution prior to questioning. There is nothing in the Bill that approximates to that.

It appears to me that the Government should take the clause away and examine it carefully, looking at how properly human rights-proof it could be. I am not up to speed on the full, most up-to-date case law on self-incriminations, subsequent to the Human Rights Act, but it is not that long since the giving of information under section 172 of the Road Traffic Act 1988—which requires a person suspected of driving a car at the relevant place and time to state whether he or she was the driver, and if not, who he or she believed the driver to be—was held to be incompatible with Scots law. That was subsequently overturned by the Privy Council, but my understanding and recollection—the Under-Secretary's advisers will have better knowledge of this—is that that was done on a narrow administrative basis. What we are talking about here concerns the fullest powers of investigation and could not in any sense be described as a narrow administrative point.

Mr. Field: I have a couple of minor points to make, although I must confess that I do not share the encyclopaedic knowledge of Scots law that the hon. Gentleman has.

Mr. Carmichael: The hon. Gentleman should count himself lucky.

Mr. Field: I suspect that I can indeed count myself lucky in that regard, especially on St. George's day, when we should all be proud.

I accept that, under clause 187, we shall discuss one or two safeguards that have been put into place for would-be defendants in this regard, and I understand the Government's desire to make clause 184 work. Clearly, we want to avoid the risk of documentary evidence being shredded, or the tipping off of individuals in advance of an OFT inquiry. I understand that some aspects of the clause give the OFT powers in that regard.

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