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Lord Rodgers of Quarry Bank: In view of the remarks made by the noble Lord, Lord Merlyn-Rees, I should like to make a contribution. I am very glad that the noble Lord, Lord McIntosh, has moved the amendment so that we may explore and illustrate how the principle of an in-house investigating team could work. I return for a moment to an earlier discussion. I must say that I find it difficult to understand why, under the terms of the Bill, the commission shall be empowered to employ police officers to supervise an investigation but not be empowered to employ those who carry out the investigating. That is exactly the provision in the Bill as drafted.

I was grateful to the Minister for spelling out in a great deal more detail how the process would work. In fact, she reassured me in a number of respects. But, nevertheless, given the Minister's argument for flexibility, I believe that the terms of the amendment where it says that the,


set out exactly the sort of tone which would be reflected in the provisions of the Bill.

At one stage in our previous discussion—and I am sure that I recall this correctly—the Minister said that we must ask the question: what best suits the commission's purpose? Of course, the Minister is right to ask that question, but I believe that what best suits the commission's purpose is for the commission to decide. The argument that we had earlier, and to which the amendment refers, is whether this place, or more particularly the Government, or, indeed, the commission

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should decide what best suits the commission's purpose in achieving the Bill's objectives. The noble and learned Lord, Lord Scarman, asked why we could not trust the commission. That is a most important question. If this place cannot trust the commission, how can we expect the commission to be trusted by the public once it has been established?

Baroness Blatch: The amendment would give sweeping powers of unprecedented scope for the commission and its agents to enter premises and search for and remove documents. Although apparently modelled on provisions in the Companies Act 1985, the present amendment goes far wider than the powers in that Act, which relate to very specialised offences and circumstances.

Parliament has rightly been cautious about extending invasive and coercive powers of regulation and investigation. It has insisted that there should be a genuine need which cannot be met by less draconian means; that there should be strict control over who can exercise such powers and in relation to what kinds of material; and that there should be sufficient safeguards and assurances of accountability. I have to say that I am doubtful that the present amendment satisfies any of those important conditions.

The powers in the Companies Act are there because of the special nature of the investigations involved and the special position of those being investigated. The powers relate only to material sought in connection with a limited range of financial offences which it would be exceptionally difficult to prosecute without unusual powers to obtain evidence of the trail of transactions involved. By contrast, the present amendment would extend similar powers to the commission in relation to any material whatsoever across the whole range of its cases, however great or small, and whatever the nature of the matter being investigated.

Further, the amendment appears to enable the commission to appoint anyone it likes to exercise those powers, even in the case of the first subsection, without applying for a justices' warrant. No indication is offered as to who might be an appropriate person, or what qualifications or standing the commission or, indeed, the justices should look for. It is difficult to see how accountability for the exercise of those invasive powers could be effectively maintained in those circumstances.

Powers of entry and search, especially when, as here, they may be exercised against private citizens in their homes, are normally confined to police officers, for very good reasons to do with training, discipline and public accountability. Even when it is necessary for the powers to be exercised by someone with special professional knowledge, there is generally provided the added safeguard—as in the Companies Act—that that person should be accompanied by a constable. The amendment, on the other hand, does not even make that requirement.

Amendment No. 40 also sets up a dangerous anomaly. It attaches no restrictions to the type of material that could be seized, including material which is unlikely to be admissible in evidence, such as that protected by legal privilege—that is, communications between a lawyer and his client in relation to legal advice

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requested by and provided to that client. Moreover, the conditions for obtaining access to sensitive material under the amendment are less stringent than those set out in Schedule 1 to the Police and Criminal Evidence Act 1984. The amendment would, therefore, impose fewer safeguards and restrictions on those powers of investigation than apply to those exercised by the police. We cannot sensibly have two standards applying at different stages of the criminal justice process.

No doubt the proposed amendment could be tempered to meet those points if it were thought that the commission needed additional powers of that kind, but I have heard nothing to suggest that it does. I am not aware of any case in the experience of the Home Office in which existing means of investigation—including the exercise of normal police powers—have proved insufficient to locate documents necessary to consideration of a case. The Royal Commission rightly recognised this, and recommended that the need for extra powers should be kept under review—not that they should be provided on the off-chance they might be needed one day.

The noble Lord, Lord Merlyn-Rees, posed an important question—namely, whether the commission could go to the Midlands—in trying to tease out precisely how "direct" and "supervise" would happen in practice. First, I should say, yes they can. What we would envisage in practice is that the initial prescriptive direction would come from the commission to the investigator of a particular case. If the commission at any time was concerned about the way that investigation was taking place and if it was unhappy about the service it was receiving from either an individual police officer or a police force, it is within the powers of the commission to call that person or indeed the force off the investigation, but it is also within its powers to accompany a police officer during an investigation and to direct the questions that are asked of a particular person. All the safeguards are there for the commission to satisfy itself that the police service is providing the service which is prescribed in the first place by the commission. I think the noble Lord, Lord Merlyn-Rees, together with myself, would accept that the police in almost all cases will deliver a quality service to the commission. But, should it not in a particular case, then the commission has powers to do something about that.

Lord McIntosh of Haringey: That was a fascinating answer and I shall read it with great care. I am temperamentally sympathetic to the idea that we should be cautious about extending powers of entry and police powers. Therefore, quite apart from the fact that the Committee decided earlier not to give the commission its own investigative powers, I believe the Minister is right as regards the extent to which we propose to extend such powers in this amendment. I was encouraged to hear her say that no doubt a more modest amendment could be devised. Those were not her words but I think that that was what she was driving at. If, as I hope and believe, we persuade the Government or the Chamber that the commission should have its own investigative powers, I am sure that we can come up with a series of powers

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which would be appropriate without being unduly coercive, as I am now convinced the present amendment appears to be. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8.15 p.m.

Baroness Blatch moved Amendment No. 41:


Page 15, line 45, leave out ("and opinions obtained, and any reports commissioned,") and insert (", opinions and reports received by him").

The noble Baroness said: I spoke to Amendment No. 41 with Amendments Nos. 27 to 30. I beg to move.

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendment No. 42:


Page 15, line 47, at end insert:
("( ) The Commission shall issue a Code of Practice giving guidance on—
(a) the duties of an investigating officer,
(b) the nature and extent of the supervision of inquiries to be exercised by the Commission, and
(c) the general conduct of inquiries.").

The noble Lord said: Amendment No. 42 was intended to plug another of the possible holes in the argument for Amendment No. 32 for investigative powers for the commission. However, looking at it, despite the earlier decision of the Committee, I rather think that Amendment No. 42 stands in its own right and deserves the support of the Committee regardless of what we said previously. My noble friend Lord Merlyn-Rees referred to the difficulty of understanding what is meant by direction and supervision. I am sure he is right. Inevitably, if a distinguished ex-Home Secretary finds difficulty with that, I think the commission and those responsible will be feeling their way as regards the quite wide powers of direction and supervision of investigations which, as the Minister reminded us, have never been held before by C3 for perfectly good constitutional reasons.

Therefore it seems to me sensible that we should attempt to codify the extent to which there should be rules for an investigating officer, and the degree of supervision and direction which is to be imposed, because if we are feeling our way in these matters and if these powers are as extensive as they appear to be, surely it is desirable that as soon as possible—perhaps not immediately; we do not set down any date for the introduction of a code of practice—they should be set out in a form which is available to the public, the police, the legal profession and, of course, for the commission's own benefit. The analogy we should draw is with the code of practice which the Crown Prosecution Service has published for Crown prosecutors. To that extent, although the original motivation for the amendment no longer exists, I hope that the Government will feel that it has merit in its own right and that the Minister will be sympathetic towards it. I beg to move.


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