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Lord Ezra: My Lords, I support this series of amendments mainly because it would bring the wording of the Bill more into line with the wording of EU legislation. The Government state that the main purpose of this legislation is precisely to achieve that. That would apply in this case and therefore I hope that the amendments will be agreed to.
Lord Kingsland: My Lords, the Minister will be aware that a large number of those amendments which were tabled in Committee to Clauses 25, 26, 27 and 28 have been retabled. They were gone through in great detail in Committee. I trust that the Minister will be relieved to hear that they will not be subject to the same detailed investigation again today, at least not from the Opposition Front Bench.
However, I should like to trespass on the Minister's time to make a general statement about this series of amendments. He will recall that the matter was touched on in the Opposition's winding-up speech on Second Reading and he will know that the context in which the amendments are placed is the procedural regime set up, first, by the European Community and, secondly, by the human rights convention soon to be incorporated into our law if Her Majesty's Government have their way in another place.
Under the Bill, powers given to the OFT are draconian. The Minister responded in only a minor way in the revised Bill which he has produced for Report stage. It is likely that when the OFT exercises those powers, it will be frequently subject not only to appeals to the tribunal but also to actions for judicial review.
It is a debatable point as to whether Clause 58 incorporates into the procedural rules of the Bill the same procedural safeguards which have already been laid down by the European Court of Justice in Luxembourg. However, there can be absolutely no doubt whatever that once the Human Rights Bill becomes law in this country the safeguards laid down by that Bill will apply to any action taken by the OFT. In looking at those procedures and in applying the general doctrines of proportionality and fairness, the Minister will find that the standards required by our courts are higher than those which he has inserted into the Bill.
Lord Simon of Highbury: My Lords, as the noble and learned Lord, Lord Fraser, observed, this is a large group of amendments and included in it are government amendments, and I should like to try to find a way through all of them. The powers of the Bill are those necessary to ensure a competitive marketplace. I am always careful about the use of the word "draconian". I believe that we must have effective competition in the UK market and in the European marketplace. Our purpose is to achieve that in the most consistent way possible.
The Government have listened carefully to the points made in Committee, and indeed, as has been stated, have come forward with amendments to address some of the concerns expressed. We do not accept all the points raised and I shall endeavour to explain why. First, I take Amendment No. 85. That repeats an amendment tabled in Committee by the noble and learned Lord, Lord Fraser, and the noble Lord, Lord Kingsland. That was considered at length in Committee (Official Report, 17/12/97; col. 376) and I see nothing new in the circumstances now to cause us to reconsider the matter.
The amendments proposed would place an impossible burden on the investigator; for example, in respect of the requirement to specify the grounds for considering that a specified document relates to the investigation. Such a requirement would clearly only have the effect of frustrating the investigation. Specifying the conduct being investigated is, we believe, better done in the government amendment which we have tabled.
Amendments Nos. 95A, 95B and 109A were also debated and rejected in Committee for similar reasons. They limit the director's power to ask for documents and information held on computer and, effectively, explanations of them in relation to documents and information he has already considered relevant and had required by notice. We see no reason to alter our view on that.
In speaking to Amendment No. 86, I should like to cover also Amendments Nos. 93, 94, 99 and 138. In Committee we considered a number of amendments aimed at requiring information to be given to the undertaking which is under investigation. While certain information would be given during the investigation as a matter of ordinary practice, we undertook to consider amendments to require the undertaking to be given notice of the subject matter and the purpose of the investigation and what are the penalties for non-cooperation with an investigation. Having reflected carefully on the debate, I am satisfied that it is right to amend Clauses 26, 27 and 28 to give legal effect to and to provide for those matters. Undertakings should be told of the nature of the investigation they are facing. I am grateful to the noble and learned Lord, Lord Fraser, and the noble Lords, Lord Ezra, Lord Kingsland and Lord Lucas, for the points they raised in that regard. They have been taken into account.
These amendments require the relevant information to be given in each instance when investigatory powers are exercised. Therefore, they will cover requirements under Clause 26, when premises are entered without a warrant under Clause 27, and when they are entered with a warrant under Clause 28. Those are along the lines of similar requirements in EC Regulation 17/62 which governs the investigations by the EC Commission into suspected infringements of Articles 85 and 86.
Amendment No. 90 addresses the question of the right of being afforded reasonable time to seek legal advice. We went over that ground fairly extensively in Committee. That is an area in which I do not accept that we should go as far as the amendment suggests. In Committee I explained the regime which would apply under the Bill. I added that 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.
Therefore, I expect the director general to follow Commission practice in conducting his investigations. Clause 58 makes provision for EC jurisprudence generally to be imported into our domestic regime and also for the director general to have regard to Commission statements. Therefore, I believe that we have covered the ground already in our own statements made in Committee and in the amendments which we have tabled.
I do understand the implications that the noble Lord, Lord Kingsland, has put to us about the future development of UK law. I understand that and naturally, as that develops, the jurisprudence will develop in relating the two sets of legal bases. But the fact here is that we have, as I said, within our amendments relating to this Bill attempted to follow the principles of Clause 58 in bringing across the EC jurisprudence on competition matters, and I am satisfied that we have done that according to the structure that we require for competition in the UK market. On that basis, I am not as yet convinced that we need to bring forward further amendments than those we have already tabled to take account of the position debated in Committee.
Lord Fraser of Carmyllie: My Lords, I am grateful to the Minister for his full reply on this rather complicated set of amendments. I thank him because I believe that he has, in the main, answered most of the concerns that we expressed. He will no doubt appreciate that it is quite complicated to fit them all into place. I look forward to having an opportunity to read the Bill before Third Reading to ensure that we have covered all that we wish to cover.
I was interested to hear the Minister pray is aid Clause 58 on the question of legal advice. Without in any sense warning him, I have no doubt that we shall have a detailed debate on that clause when we reach that
Page 13, line 15, at end insert--
("(2A) A notice under subsection (2) must indicate--
(a) the subject matter and purpose of the investigation; and
(b) the nature of the offences created by sections 41 to 43.").
Page 13, line 33, leave out ("(or by an officer acting on his behalf under section 25(2))").