Clause 47
POWER OF OFT TO REQUIRE ACCESS TO PREMISES
Mr. Robertson: I beg to move amendment No. 35, in clause 47, page 38, line 27, at end insert—
'(7A) It shall be the duty of the OFT to take all reasonable steps to ensure that its own officers, or those of the enforcement agency, shall, when entering and while on the premises by virtue of this section, at all times behave in a reasonable and professional manner.'.
I assure the Minister that I shall not press the amendment to a Division, as it, too, is a probing amendment. However, it is a continuation of my concern about the OFT. Clause 47 gives the OFT power to require access to premises; clause 48 gives the OFT power of entry to premises under warrant. That is quite an extension of the OFT's powers. They are, I suppose, similar to the powers of Her Majesty's Customs and Excise; its considerable powers are familiar to any businessman. Perhaps they are required; I do not know.
Amendment No.35 requires the OFT to ensure that anyone entering premises, either as their own agent or as agents of other enforcement authorities, should behave in a proper and professional manner. That is not an unreasonable requirement. It is a probing amendment because there are many requirements on business and on licensees to co-operate. I am, however, concerned about the powers granted to the OFT. I ask the Minister to address not merely the amendment, but also to give the Committee an explanation of what supervision he envisages for the OFT when it has such powers of entry. It will concern licensees greatly.
Mr. Sutcliffe: Once again, I am grateful to the hon. Member for Tewkesbury for moving the amendment; I accept that it is a probing amendment. I do not wish to underline too much his concerns about the OFT, but I should set out how the OFT should behave when exercising its new powers under the Act.
The hon. Gentleman is of the view that nobody can control the OFT. The OFT is an independent regulatory body established under the Enterprise Act 2002 and is fully accountable to Parliament, reporting annually to the Secretary of State for the Department of Trade and Industry and appearing before relevant parliamentary committees. Indeed, several meetings take place between OFT officials, DTI officials and Ministers.
Alistair Burt: In replying to my hon. Friend, I would appreciate it if the Minister would tell us why this power is being sought. Why can the OFT not rely on other powers, including the power of discovery, in order to produce documents at an appropriate stage? Why have representations been made specifically requiring such an increase in the OFT's powers?
Mr. Sutcliffe: I appreciate the spirit in which the hon. Gentleman asks those questions. As I have said, the OFT already has many powers under the Enterprise Act 2002, but I can reassure the Committee that the Bill contains the appropriate checks and balances required to regulate the
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behaviour of OFT officers and those acting on the OFT's behalf.
First, under clause 50, anything done by an enforcement officer acting on behalf of the OFT will be treated as if it had been done by an officer of the OFT. Secondly, a licensee would have grounds for appeal in the highly and, I hope, unlikely event of an officer behaving in anything other than a reasonable and professional manner. A licensee might be able to appeal against a decision if the OFT sought to use evidence in an unreasonable and unprofessional manner. Thirdly, officers of the OFT, like all public servants, are bound to act reasonably and professionally at all times. If they do not, they can be reported to the parliamentary ombudsman. Administrative law imposes a general duty on public bodies to act reasonably.
In addition to those checks and balances, I would like to provide further reassurance to hon. Members. The OFT has similar powers of access to premises under cartel investigations and, despite having no specific legislative duty, OFT officers have behaved responsibly and professionally when conducting visits for these investigations. There is no reason to believe that OFT officers will act any differently when conducting licensing visits. Therefore, together with all the checks and balances already in place, the amendment—which I accept is a probing amendment—is unnecessary.
It is important for the OFT to have those powers. I was asked why we are giving people the power to enter business premises at all. In some cases fitness can be assessed most effectively and efficiently by an enforcement officer visiting the premises of a licensee and gaining access. The powers already exist under the Enterprise Act 2002, and we are looking into the licensing regime. Safeguards are in place—a variety of checks and balances already exist.
Hon. Members have put on record their concerns, which I am sure the OFT will take into consideration in how it operates. I hope that those assurances have reassured the hon. Gentleman, and I ask him to withdraw his amendment.
Mr. Robertson: I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 47 ordered to stand part of the Bill.
Clause 48
ENTRY TO PREMISES UNDER WARRANT
Question proposed, That the clause stand part of the Bill.
10.15 am
Mr. Robertson: Clause 48 deals with entry into premises under warrant. Clause 47 gives the OFT the power to require access to premises, but I presume that clause 48 is subsequent to that should the OFT be refused that entry. However, if the OFT has the legal power to enter premises, does it not naturally flow that
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it should be granted a warrant to enter should entry be refused? I wonder whether we are going a little too far.
I understand that there is a need to gather information in order to protect consumers, but would it not be better to allow the courts to draw an inference from a refusal to allow entry, rather than to give them the power to grant a warrant? If some of the wording of the clause had been different, I might not have wished to speak about it. For example, proposed new section 36D(3) states that a warrant gives an officer the right
''(a) to enter the premises specified in the warrant;
(b) to search the premises and to seize and detain any information or documents appearing to be information or documents specified in the warrant or information or documents of a description so specified''.
If the court has such a degree of detail, is there a need to enter the premises in the first instance? It also provides for the power
''to use such force as may be reasonably necessary.''
That alarms me. It is not clear who is allowed to use such force. Is it an officer of the OFT?
Perhaps I am getting into an area that I do not quite understand, but the wording in the Bill on the right to obtain a warrant and to enter premises alarms me. I wonder whether such officers will be of a certain description or given a certain legal right. I am troubled by that, and before accepting the clause, I would like an explanation of why it is felt that the courts should be able to issue such a warrant and, more particularly, why there is a need for some of the wording in the Bill.
Alistair Burt: I wish to reinforce the concerns raised by my hon. Friend. This issue represents another example of the extension of powers. With regard to my earlier question, if the information is not available to the Committee today, perhaps the Minister could write to Committee members. What circumstances have arisen regarding the supervisory authorities so that they now require such powers? Are there occasions when the authorities have been convinced that some irregularity exists, when information was available that would help in the pursuance of a case against someone whom they wished to charge under this or a similar Act, and they simply failed to obtain it because they were not quick enough or because the process of discovery through civil proceedings did not bring that information to light? This is quite heavy stuff.
None of us would resist giving the authorities the ability to acquire information in circumstances where people have been badly let down or are being adversely affected by the inappropriate activities of those who, alas, sometimes operate in the industry. However, the powers are very extensive; people with a warrant will be able to knock on doors, enter premises and seize whatever they choose. If the powers are justified, my concern is to establish where the need has, technically, come from. What have the authorities said to the Government to show that they need extra powers in addition to those that they already possess? In the general context of the Bill, it would be helpful—bearing in mind the powers that we are seeking to exercise on behalf of consumers, who are the worst hit
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when things go wrong—if some evidence could be given as to why such sweeping powers are necessary.
Mr. Sutcliffe: I agree with the hon. Member for North East Bedfordshire that it might be worthwhile to write to Committee Members to set out the reasons for the powers. I shall try to deal with that matter, but to reassure hon. Members, it may be better to provide a more detailed written explanation of why it is important to provide for such powers.
The powers will be invoked only once the proper procedure has been exhausted, and the authorities have failed to gain access via their existing powers. The clause addresses the circumstances in which an enforcement officer can enter premises with a warrant obtained by the OFT and the procedure required for that. Under certain circumstances, the OFT may apply to a justice of the peace for a warrant to search premises. That justice of the peace must be convinced that such action is reasonable. In Scotland, applications must be made to a sheriff. The OFT must have reasonable grounds to believe that there is information on those premises that is required under section 36B. The OFT must also have reasonable grounds to believe that if a requirement to provide information were imposed, it would not be complied with or the documents or information in question would be tampered with. Most people will act reasonably in those situations.
Many hon. Members have mentioned loan sharks and disreputable people. The provisions concern linkage to the licensing regimes. It might be that reasonable force applies to opening a locked cupboard where information is stored. The officer responsible for carrying out the warrant could enter and search the premises. He can seize and detain any information or documents of the description specified in the warrant. The officer would then be able to act to secure the protection of the information or documents and prevent interference with them. Those powers are subject to the definition of reasonable force, which applies to other powers in the Enterprise and Competition Acts.
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