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Even since the publication of the White Paper the Secretary of State for Trade and Industry has consistently maintained that the extension of the regulator's powers outside the licensed area is unnecessary. In a letter dated 31st July 1999 to the chairman of the Select Committee on Trade and Industry, the Secretary of State said:
The amendments are designed to eliminate that massive over-kill which imports wide powers to intrude into areas where the commission has no business. Clause 47(1) relates to the production of documents by "any person". "Any person" means what it says, even perhaps any one of your Lordships, no matter whether the person served with the notice has any connection, however remote, with either the supply or receipt of postal services. I cannot imagine why the Government have sought such wide-sweeping, all-embracing powers to produce documents of any kind, with the exception of those privileged under subsection (4)(a) of Clause 47.
My two amendments bring those persons who are required to supply documents and information to the commission exactly into line with Clause 58, where the counterpart provisions require information to be supplied to the Consumer Council by the commission, a universal service provider and any licence holder under Part II who is not a universal service provider, and not any person carrying on any business. There can be absolutely no justification for a distinction between the two categories of persons liable to supply information and documents, especially when under Clause 48 such a person is liable to a criminal conviction and substantial financial penalties and costs.
In the other place it was suggested by my honourable friend the Member for Rutland and Melton that the Bill, as drafted, and the draconian penalties for which it provides, infringed human rights legislation, despite the Secretary of State's certificate to the contrary. In reply the Minister said that,
I shall now refer to the arguments against the identical amendments when they were tabled in Committee in another place. The Minister for competition conceded that the phrase "any person" had a wide definition. By implication, therefore, we may take it that he conceded that any business had a similar wide connotation. He said that the commission could require people to provide information,
On being pressed by my honourable friend, the Member for Rutland and Melton, the Minister assured him that the relevant purpose qualified the words "any person" and, I assume by implication, that means that it also qualifies the words "any business" and that the provisions refer only to licence holders and universal service operators or persons suspected of being in breach of the conditions. Why does not the Bill expressly say that, bearing in mind the powers of entry and seizure under a magistrate's warrant that are provided by Clause 49?
The Government may say that the effect of the clause is limited, but so long as "relevant purpose" is not defined, it will be open to an official of the commission to launch a fishing expedition on the basis of Humpty Dumpty's dictum that words can mean precisely what one chooses them to mean.
We do not wish to see the humble owner of a pizza delivery service or even the mighty Tesco being harassed for details of their operations, or being faced with threats of criminal sanctions, or of having to go to court to protect themselves from what I should like
Lord Sainsbury of Turville: I agree that it may appear at first sight that this provision gives a large remit to the commission to require information from people who are outside the scope of the reserved area. However, there is a good reason for that. When the provision is examined in detail, one can see that it applies only on a very limited basis.
One of the commission's duties is to license people to operate within the reserved area. It also has the power, contained in Clause 6, to prosecute anyone operating in the reserved area without a licence and not falling within the exceptions set out in Clause 7. Given that the commission has that duty and power, it also needs powers to police the reserved area.
The effect of these amendments would be, first, that anyone operating illegally in the reserved area without a licence would not have to give any information to the commission. Clearly that could be a dangerous loophole. Effectively, that would allow exactly the kind of people from whom we want to get information to get away.
Secondly, Clause 47 allows information to be gathered only "for any relevant purpose". It is worth explaining the relevant purposes for which the commission can require information under Clause 47. It is important to emphasise that the clause applies to "any person", but only for specific and limited purposes, as set out in the clause; namely, investigating the offence of operating without a licence in the reserved area or any proceedings for such an offence, as set out in Clause 6; for the purpose of exercising its functions in relation to breach of licence conditions under the new licensing regime, contained in Clauses 22, 23, 24 and 30; providing advice and information on public post offices, as set out in Clause 42; collecting information on standards of performance achieved by licence holders and USO providers, as set out in Clause 44(3); or collecting information on behalf of the council for the latter to carry out its function, as set out in Clause 44(4).
I believe that the Committee will see that these purposes are limited and, more important, are vital to the role and duties of the commission. I do not believe that the amendments would be to the benefit of postal users. As I have said, they would allow people operating in the reserved area illegally not to need to give information to the commission. Having set out those points, I very much hope that the noble Baroness will feel able to withdraw her amendment.