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Lord Simon of Highbury: I have listened with interest to that legal construct and the point as to why warrants should be issued by High Court judges or by the president, who will have the status of a High Court judge. I am thoroughly of the view that the right to entry using reasonable force is a necessary part of ensuring that the process of investigation goes forward. It is a key element in our strategy. I respond to the views of the Committee, which are very clear, that forcible entry is a serious matter. Therefore, it is important that we set the proper threshold to be reached before the powers are used and ensure that they are authorised in the proper manner.

I see some advantage in the power to issue warrants resting with High Court judges. I prefer that to the alternative we are also offered this afternoon of the president of the tribunal. That is because I do not believe that the function rests easily with the nature of the tribunal arrangements. In the light of the submission by the noble Lord, Lord Kingsland, I am very much minded to consider Amendments Nos. 121, 132 and 144, but, because of the nature of the organisation, I ask him not

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to press Amendments Nos. 120, 131 and 143, which concern tribunals and the president's role, while we effectively consider the three positive amendments.

Lord Fraser of Carmyllie: Perhaps I may say to the Minister how much we welcome that indication from him. There is also a different line of reasoning that he might wish to bring to bear on this matter. Of course justices of the peace throughout the United Kingdom are well used to being asked by police officers to sign search warrants, so that aspect is not particularly problematic. As regards Clause 28, one would have to consider whether there are reasonable grounds for believing that there are on any premises documents whose production has been required under Clauses 26 or 27. The Minister has worked his way through the provisions assiduously. He has gone back to Clauses 26 and 27, which in turn take him back to Clause 25, which in turn takes him back to Clause 18, and that takes him all the way through to Article 86 of the Treaty of Rome. There are plenty of very highly conscientious justices of the peace throughout the country but, if they were taken logically through those provisions and were then asked what is an abuse of a dominant position in the market place, I believe that their willingness to face up to whether or not a warrant should be granted would be very different from their response in cases with which they are very familiar, such as those involving drugs or whatever it might be. I hope that the Minister will give very serious consideration to that. I do not believe that he will be surprised to hear me say that if power is granted to a High Court judge this side of the Border we would expect, indeed demand, comparable treatment north of it.

Lord Kingsland: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 121 not moved.]

Lord Kingsland moved Amendment No. 122:


Page 14, line 35, leave out ("it is reasonable to suspect") and insert ("there are reasonable grounds for belief").

The noble Lord said: Amendments Nos. 122, 123, 133 and 134 take us back to "reasonable suspicion" and "reasonable grounds for belief". On two occasions the Minister has spoken on this issue. Can I take it that his view remains the same as it was at the beginning of today's proceedings? I beg to move.

Lord Simon of Highbury: The noble Lord, Lord Kingsland, has judged my reaction well. My views remain unchanged and therefore it is hardly surprising that I ask whether he will consider withdrawing his amendment.

Lord Kingsland: I shall be delighted to withdraw my amendment on the usual terms.

Amendment, by leave, withdrawn.

[Amendments Nos. 123 and 124 not moved.]

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Lord Kingsland moved Amendment No. 125:


Page 15, line 4, leave out ("such force as") and insert ("no more force than").

The noble Lord said: This amendment is almost a banker. I am absolutely convinced that the Minister will happily accede to this amendment. It seeks to change the expression,


    "such force as is reasonably necessary for the purpose"

to,


    "no more force than is reasonably necessary for the purpose".

I beg to move.

Lord Borrie: As the noble Lord, Lord Kingsland, and I have disagreed on many subjects, on this one I am happy to go along with his amendment and commend it to the Minister.

6.15 p.m.

Lord Simon of Highbury: I find myself in a quandary. When I see these particular battalions raised against me I begin to wonder whether it could be absolutely correct for me to say that I entirely agree with the principle that, on those rare occasions when these powers are used, no one should be authorised to use more force than is necessary. That is the effect of the Bill as drafted. I find it difficult to see that the proposed new wording makes any difference. I would like to hear one more time why it is that the words in the Bill are not adequate for the amount of force that is necessary to go about one's business.

Lord Kingsland: It is a question of tone, really. It is the way in which these things are normally expressed by judges when dealing with the duties of citizens in relation to the exercise of force; namely,


    "no more force than is reasonably necessary".

It is not a trick amendment and it does not seek to cut down the officers' authority, but simply to express it in terms which are more attuned to our own constitutional traditions.

Lord Simon of Highbury: I can respond positively in terms of advice on style, culture and mode to the noble Lord opposite. I shall think very hard about this, because if this is the right language to use it would be inappropriate for me, as the common man, to question the difference between the two alternatives. I shall think very carefully about style, culture and the right approach, and we shall discuss this matter again in, I hope, as pleasant circumstances as we have tonight.

Lord Kingsland: In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees: If Amendment No. 126 is agreed to I shall be unable to call Amendment No. 127 through pre-emption.

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Lord Kingsland moved Amendment No. 126:


Page 15, leave out lines 6 to 9.

The noble Lord said: Amendments Nos. 126 and 127 are couched as alternatives. I believe that the Minister is aware of that. The purpose of these amendments is to limit the power to remove documents. It is in that spirit that they are drawn. Exactly the same is true of Amendments Nos. 128 and 140. I beg to move.

Lord Ezra: As Amendments Nos. 127 and 140 stand in my name, perhaps I may speak briefly to them. I feel that there is some inconsistency in the Bill as drafted. There are references to "copies of" or "extracts from" documents. There are other references to the original documents. Original documents should not be taken. A company should be left with its original documentation. Furthermore, there should be consistency in the drafting of the Bill. I therefore hope that the Minister will take serious note of these two amendments.

Lord Simon of Highbury: Amendment No. 126 would mean that an officer who had entered premises under a warrant would be unable to search them. This would undermine the whole purpose of the provision. The power to enter under warrant is for exceptional cases where the production of documents has already been refused, entry has been refused, or it is reasonable to suspect that documents may be destroyed or concealed. We are therefore talking about the very limits of investigation, if I may express it in those terms. Under those circumstances, is it realistic to imagine that documents would then simply be made available? Very rarely, I would suggest. Cartels which have been hiding their existence are unlikely to leave incriminating documents lying around.

Amendment No. 127 would not affect the power of search but would mean that an officer entering under a warrant would not be able to take possession of documents or prevent their destruction. The director's officers would just be able to take copies or extracts. I can understand the concerns of those who believe that the power to take possession of documents goes too far. That is implicit in Amendments Nos. 126 and 127, but I cannot emphasise too strongly that these are powers for use in the exceptional cases in which we know that the rogues have thus far repelled all boarders. It may be that such people are even outright hostile to an investigation.

I cannot accept that it would be right to leave OFT officials in a position where they might be watching documents that would provide evidence of a cartel being shredded and be powerless to do anything about it, or where they might be trying to photocopy documents on the premises while they were being threatened. I see serious problems with restricting the nature of the activity which an investigator can undertake.

As I have said, we have to construe the provisions as applying in extreme circumstances. I believe that we would again be seriously limiting the powers of the investigation if we were to accept Amendments Nos. 126 and 127. Given that we are considering

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extreme circumstances, I ask the noble Lords, Lord Kingsland and Lord Ezra, whether they would be prepared to withdraw their amendments.


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