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Lord Sainsbury of Turville moved Amendment No. 44:

On Question, amendment agreed to.

Clause 46, as amended, agreed to.

Clause 47 [Power of the Commission to require information]:

Baroness Miller of Hendon moved Amendment No. 45:

    Page 30, line 20, leave out ("any person") and insert ("the Council, a universal service provider or any licence holder under Part II who is not a universal service provider").

The noble Baroness said: In moving Amendment No. 45 I shall also speak to Amendment No. 46. I believe that these are two of the most important amendments to the Bill. They deal with collective

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provisions seeking to give the commission excessive and unnecessary powers, with draconian penalties in case of any default.

As drawn, the clause flies in the face of the Government's stated policy as outlined in the White Paper. Paragraph 18 on page 24 states:

    "The UK postal market outside the statutory monopoly is a vibrant, competitive market ... It is therefore the Government's intention that regulation should focus on those who are operating within the monopoly area, leaving the rest of the market to operate as they do now in a largely unregulated environment".

The clause as drafted involves anybody, including those persons who are not even in the postal business. Again, I quote from the White Paper at paragraph 32 on page 28:

    "The Regulator will have the power to require information relevant to the exercise of its functions from the Post Office and other operators licensed to operate within the monopoly".

Note the phrase,

    "other operators licensed to operate within the monopoly".

It does not say "any business", as stated in subsection (2) of Clause 47.

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:

    "I do not believe that it is either right or necessary for the Postal Services Commission to have power to require information from the commercial sector, where it is operating outside the monopoly".

If it is unnecessary for the commission to require information from the 4,000 businesses that the Secretary of State says operate in what may loosely be described as the mail delivery industry, why does it require power to acquire documents and powers from anybody operating any business?

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.

Briefly, I turn to Clause 47(2) which is the corresponding provision that requires not the production of documents but the supply of information, again by,

    "any person who carries on any business".

That is not confined to those businesses involved in the supply or receipt of postal services. It widely covers any business, even the local pizza parlour which runs a delivery service.

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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,

    "the level of fines have been approved by the Home Office".

I suppose that makes it all right then!

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,

    "if it is investigating the offence of operating in the reserved area without a licence under Clause 6".

He went on to list three other purposes for which information might be required. He stated:

    "It can require information only for those specific purposes".

That is what he said, but the Bill does not contain such a limitation. It simply refers to any person and to any business with absolutely no limitation.

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

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to describe as illegal snooping. If, as the Minister in the other place conceded, the effect of these two subsections is limited, then let the Government agree to spell out what are those limitations here and now, in clear language. I do not, of course, expect the Minister to do that tonight, but I certainly would like him to undertake to do it at the next stage of the proceedings. Alternatively, if the Minister does not feel that that is necessary and if he feels more conciliatory, he could accept the amendments tonight and so put the matter beyond any doubt. I beg to move.

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.

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