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Lord Peyton of Yeovil: Having moved the amendment, perhaps it is appropriate that I seek leave to withdraw it. However, while I do not ask the noble Lord to give any sweeping commitment at this stage, perhaps he will consider what was said. There is a genuine and real fear--it is not confined to this side of the Chamber--that if one gives powers to director generals or Ministers, very respectable people, it is at least possible that they, or one of their underlings, may be tempted at some time to abuse that power for the best

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possible reason: they think that they are doing right; they are bringing a culprit to justice. But they are still breaking the rules. I hope that the noble Lord will bear those considerations in mind. If he will do so, I am happy to beg leave to withdraw the amendment.

Lord Kingsland: Perhaps I may--

Lord Peyton of Yeovil: I had sought leave to withdraw the amendment. If my noble friend wishes to intervene, I should have thought that he would probably have done so before I spoke.

Amendment, by leave, withdrawn.

[Amendments Nos. 99 to 104 not moved.]

Clause 26 agreed to.

Clause 27 [Power to enter premises without a warrant]:

[Amendments Nos. 105 and 106 not moved.]

Lord Peyton of Yeovil moved Amendment No. 106A:

Page 14, line 2, leave out ("one working day's") and insert ("two working days' ").

The noble Lord said: One working day's notice is a very short space of time. It is all too easy for governments and large organisations to think that other, less well-equipped bodies have plenty of spare people around to pay attention to matters. I do not believe that that is so. There is no magic in the two days that is suggested rather than three, four or five. It simply seemed to me that one day is rather short notice. I hope that the Minister will re-examine the provision. I beg to move.

5.30 p.m.

Lord Simon of Highbury: This is the fourth time that I have come to the Dispatch Box to respond to an amendment tabled by the noble Lord, Lord Peyton. Three times he has entreated me to listen and to consider and reflect on an amendment. Three times I have replied that I will think about it. This time, my thinking time will be short. I can state quite clearly that I agree with the amendment.

Lord Peyton of Yeovil: I rise to my feet moved, astonished and grateful. I give the noble Lord an undertaking that I shall not disturb him any further this evening.

On Question, amendment agreed to.

Lord Kingsland moved Amendment No. 107:

Page 14, line 5, leave out ("a reasonable suspicion") and insert ("reasonable grounds for belief").

The noble Lord said: The point is a very straightforward one; it has been discussed already. The amendment deals with the expression "reasonable suspicion" and seeks to replace it with "reasonable grounds for belief". I do not know whether the Minister has changed his mind about these expressions since we spoke about them two hours earlier. I beg to move.

Lord Simon of Highbury: Indeed, we debated the matter at great length earlier as a question, in particular,

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of the balance that is required when considering what are appropriate powers for the director general. I have listened very carefully to the arguments put. Lest the noble Lord, Lord Kingsland, thinks that the noble Lord, Lord Peyton, having left the Chamber is a sign that one is merely waiting for someone to move in order to agree an amendment, I must tell him that on this matter we have debated the balance. We are not in favour of reflecting this amendment in the redrafting of the Bill. At this stage, we would wish the noble Lord to withdraw his amendment on the same basis as the arguments that have gone before.

Lord Kingsland: The noble Lord heard the previous debate. I trust that he will reflect on this matter in the same way as he said he would reflect on the earlier matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Kingsland moved Amendment No. 108:

Page 14, line 10, after ("25(1)(b)") insert--
("and the giving of notice in accordance with subsection (1) would be likely to result in that party or undertaking concealing, destroying or tampering with any document specified in a notice under section 26(2);").

The noble Lord said: This amendment refers to the circumstances in which the director does not have to respect the limitation in Clause 27(2), which states that,

    "No investigating officer is to enter any premises in the exercise of his powers under this section unless he has given at least one working day's written notice to the occupier of the premises".

Subsection (3) cuts down that right in certain circumstances:

    "if the Director has a reasonable suspicion that the premises are, or have been, occupied by ... a party to an agreement which he is investigating ... or ... an undertaking the conduct of which he is investigating".

The amendment seeks to limit that exception so that the circumstances in which the day's grace would be disallowed would be circumstances in which the director had a genuine suspicion that something would be done with the evidence. I beg to move.

Lord Simon of Highbury: These amendments relate to the power to enter premises. As previously stated, it is an important power. Let me reiterate that I do not expect it to be used very frequently. But these powers must be sufficient to enable the director general to obtain all the documents relevant to his investigation into whether there has been an infringement of the prohibitions. As I have explained, these powers must be effective to conduct investigations. They must be sufficiently strong to cater for the worst cases of covert cartels. The right to make unannounced visits is therefore an important weapon in the director general's armoury.

Amendment No. 108 would increase the threshold to be crossed before the director general has a right of entry. Under the Bill, as presently drafted, he could make unannounced visits if the premises in question are occupied by an undertaking whose conduct he is investigating or if he has reasonable suspicion that that is so. All of this is, of course, subject to the provision

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in Clause 25 that the director general must have a reasonable suspicion that either prohibition has been infringed.

Amendment No. 108 would increase the threshold such that the giving of notice would be likely to result in the specified documents being tampered with or destroyed. While these are among the circumstances in which an unannounced visit would be necessary--so I understand the logic behind the amendment--there are additional circumstances. Giving notice also gives those being investigated time to prepare their story.

However, we need to address the practical effect of the amendment. How could the director general establish that the giving of notice would be likely to result in the documents being tampered with or destroyed? That sounds like a Catch 22 situation. How could he establish that without making an unannounced visit in the first place? We have many instances of that difficult hurdle for the director general in making his case.

The practical result of this amendment would be to create a high hurdle before unannounced entry. It would be the same as that which exists under Clause 28 for obtaining a warrant. As I have already said, we believe that it is right to give the director the power to make surprise visits. We must be able to cater for the most unscrupulous operators. Acceptance of this amendment would materially weaken the effectiveness of the investigating powers and the deterrence of the regime. Accordingly, I urge the noble Lord to withdraw it.

Amendment No. 110 is a further example of limiting the range of the director general's powers in a way which on the face of it is reasonable but which in practice would seriously limit the effectiveness of the powers. Unannounced entry to premises is an important part of an investigation. If, when he is there, the investigating officer could only ask for documents to be produced and ask for explanations of documents he had previously considered relevant and had given notice of, then that would obviously hamper the investigation. Investigation of a document may well indicate that other documents may contain relevant information relating to the cartel or other anti-competitive behaviour. So there may be a sequence of documentation. Is there to be a formal notice under Clause 26(2) each time so that you move from one document to another only by a separate formal notice? That would not be an appropriate way to conduct an investigation that could have any hope of unearthing evidence of a cartel, particularly if that cartel was clever enough to require that type of approach to finding information. If the investigating officer had the power to write notices on the spot, what purpose would be served? It seems to me better that he should have the ability to find the documentation as appropriate, which I believe would be restricted by these amendments. I urge both noble Lords to consider withdrawing Amendment No. 108 and not moving Amendment No. 110.

Lord Kingsland: That is the Minister's point of view. Can he tell me what purpose Clause 27(2) serves? Clearly the only reason for entering premises is if the director has

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reasonable grounds to believe or has a reasonable suspicion that it is relevant to the party whom he is investigating.

I put it to the Minister that it is hard to conceive of a set of circumstances in which an investigation will not fall into subsection (3). Perhaps he can prove me wrong. But if I am right, what is the point of including subsection (2) in Clause 27? It will never be operable.

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