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Lord Simon of Highbury: I do not wish to come between two noble and learned gentlemen of this Chamber on a matter of case law. My problem as a practical businessman looking at this construction is that, if we make express provision on the face of the Bill, it may be read as casting doubt in respect of other provisions on the general principle that powers should be reasonably exercised. It would be undesirable if we had to move through all the powers of the Bill, where the debate concerned the reasonable nature of action by one of the officers, to determine whether reasonableness in one instance should be put on the face of the Bill and in another should be regarded as a general principle of the law.

I do not want to enter into the debate on previous judgments in case law. That point needs to be taken into account in the noble Lord's thinking and I beg him again not to ask us always to put on the face of the Bill what we believe it inherently contains.

Lord Kingsland: I am aware that the Committee is impatient to get on. But there are grounds for making an exception in this clause. It refers to the right of silence which is a right that is different in kind, not just in degree, from other rights of the individual. Therefore I invite the Minister to reflect on the matter between now and Report stage.

Lord Simon of Highbury: I shall think about the matter, having aired most of the doubts in all our minds.

Lord Kingsland: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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6 p.m.

Lord Kingsland moved Amendment No. 114:


Page 14, line 20, at end insert--
("provided that the person is afforded sufficient time to seek legal advice before complying with any such requirement").

The noble Lord said: This is a point which the Minister addressed when responding to the second group of amendments. It relates to the time that an individual needs to seek legal advice before complying with the requirement. I sensed that the Minister was sympathetic when he previously addressed the matter, but I do not know whether he feels the same way in these circumstances.

Lord Simon of Highbury: I do not initially wish to disappoint the noble Lord, Lord Kingsland. My reflections earlier on time related to the time between the notice of intent to investigate and the investigation. Amendment No. 114 relates to what is happening in the here and now, during the course of the investigation under way. Amendment No. 119 would require an investigating officer entering premises to allow the occupiers reasonable time to contact their legal representatives. I would expect that to happen.

It is a procedural feature of the EC regime that the undertaking which is the subject of the investigation is given by the Commission and therefore that such an opportunity is given. As Sir Leon Brittan said in an answer given to a question about investigations in the European Parliament,


    "[The Commission] must ... allow the company a reasonable time in which to secure, during the period of the investigation, the services of an in-house legal adviser or a lawyer of its choice".

However, it is well known that the Commission will wait only a limited time for a lawyer to arrive and will do so only if it can be confident that the records of the business remain in the state they were in when the Commission officials arrived, which can happen only if they remain on the premises. There is a certain difficulty about judging the time for lawyers to arrive.

The European Court has recognised the right to legal representation as one of the rights of defence but not that an undertaking is entitled to delay unduly the commencement of an investigation while a company is awaiting its legal adviser. I expect therefore the director general to follow Commission practice in conducting his investigations. Clause 58 of the Bill makes provision for EC jurisprudence generally to be imported into our domestic regime under the Bill and also for the director general to have regard to Commission statements. The right of defence and the statement by Sir Leon Brittan would thus apply by the Clause 58 route. Therefore, I am not sure that we need to have an amendment to the Bill.

It is important, however, not to tie up an investigation in procedural knots. These amendments, by making detailed and explicit provisions rather than relying on the general principles, take that risk. We are bringing over the European application through the words of Sir Leon Brittan. I hope the noble Lord will see that as adequate protection for the reasonable application of

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advice and legal advice as the investigation gets under way and that he will be prepared to withdraw the amendment.

Baroness O'Cathain: I support the amendment. Although I have listened to the Minister saying that the point will be covered under EU legislation, I think that Clause 27 does not give much help or hope to the person under investigation. The clause is fairly onerous. I think it would be more realistic and reasonable to have the amendment on the face of the Bill. I hope that the Minister will see it that way. I understand what he says about not making the clause too detailed. However, subsection (4)(d) states:


    "take copies of, or extracts from, any document which is produced".

Subsection (4)(e) states:


    "require any information which is held in a computer and is accessible from the premises".

If the clause is as detailed as that, why cannot we put in the few words suggested in my noble friend's amendment?

Lord Simon of Highbury: Amendments Nos. 114 and 115 are aimed at affording the person who is actually to produce a document or an explanation of it, who is not necessarily the occupier, to be given a similar opportunity to obtain legal advice. We think that would be impractical. An investigation could, of course, involve the production of many documents and explanations. The whole process would therefore become over-complicated. If that is not the intent of Amendments Nos. 114 and 115, I shall reflect very carefully on the points that have been made.

Lord Kingsland: In supporting my noble friend, perhaps I may summarise in this way. Subsection (4)(b)(i) states:


    "to produce any document which he considers relates to any matter relevant to the investigation".

The noble Lord will see from the subsection that the discretion that the Minister exercises is entirely subjective. My noble friend and I would be much more relaxed if that phrase could be redrawn as follows:


    "to produce any document which he reasonably considers relates to any matter relevant to the investigation".

I say that because, if he or she does not have legal advice about whether a document is or is not relevant, there is nothing an individual can do to resist the demand. As far as I am aware, there is no system of appeal in relation to the issue of relevance. In my submission, there are two choices open to the Minister. He should either introduce the word "reasonably", which makes it clear that the standard is objective, or introduce a delay to allow an individual to obtain legal advice. In other circumstances, the man behind the guichet, if I may use an expression I used during the Second Reading of another Bill, is in total control of the situation.

Lord Simon of Highbury: We dealt earlier with the concept of reasonableness. Perhaps I may reflect on these issues. I am not convinced in my own mind that

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the reasonableness argument is the right way to tackle this. However, I should like to think carefully about the nature of how legal advice is obtained in the circumstances. The existing European jurisprudence is not satisfactory to the noble Lord and he would like to see this tied a little more clearly to page 14, line 20 of the Bill. I shall think about it in that context.

Lord Kingsland: I thank the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 115 to 119 not moved.]

Clause 27, as amended, agreed to.

Clause 28 [Power to enter premises under a warrant]:

Lord Kingsland moved Amendment No. 120:


Page 14, line 28, leave out ("A justice of the peace") and insert ("The President of the Tribunal").

The noble Lord said: In moving this amendment, I wish to speak also to Amendments Nos. 121, 131, 132, 143 and 144. All these amendments relate to replacing the application to a justice of the peace with an application either to the president of the tribunal or to a judge of the High Court.

The Minister may or may not be aware that the Opposition have tabled amendments which seek to remove to the High Court the powers of the tribunal to act as a court of appeal. If those amendments are successful, the president of the tribunal will become a High Court judge in any event. Although the amendments have been couched in terms of the president of the tribunal, in the context of the whole Bill it is our view that the tribunal should be a branch of the High Court. In those circumstances, the president of the tribunal would be a High Court judge. Our general point is that, because of the technical nature of these matters, we do not feel that a justice of the peace--I take nothing away from the merits of justices of the peace--is the relevant adjudicator. I beg to move.


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