The Department of Trade and Industry Inquiry
22. One of the factors referred to by Mr Bower
in his book was the inquiry instituted by the Department of Trade
and Industry (DTI) in January 1999 into the management and accounts
of Hollis Industries plc. The inquiry was established under section
447 of the Companies Act 1985.
23. Since it appeared likely that this inquiry
would have produced information of relevance to my own investigation,
I wrote to the Permanent Secretary at the DTI, Sir Michael Scholar
seeking his assistance. In his reply, dated 27 March 2001 (Annex
E), Sir Michael explained that section 449 of the Companies Act,
and other legal constraints, prohibited publication both of "material
volunteered in confidence" to the investigators and of their
"hypotheses, opinions and judgments."
24. In his second letter, dated 26 March 2001
(Annex F), Mr Heathcoat-Amory asked me to pursue the exceptions
to the prohibition on publication of material obtained in connection
with Companies Act inquiries which are provided for in the Act.
I sought legal advice on this matter, which set out the position
as follows:
"Section 449(1)(ll) of the Companies Act 1985
is not precisely in the terms represented in Mr Heathcoat-Amory's
letter of 26 March 2001.
Section 449 prohibits, subject to exceptions, disclosure
of a document obtained from a company under the compulsory powers
of section 447, without the consent of that company. Paragraph
(ii) authorises disclosure for the purposes of disciplinary proceedings
relating to the discharge by a public servant of his duties. A
public servant is an officer or servant of the Crown. My understanding
is that the Commissioner is investigating Mr Robinson in respect
of his conduct as a Member of Parliament and not in any other
capacity. I therefore think that her activities are outwith this
paragraph.
There is a further, broader, ground upon which disclosure
may be authorised in section 449(1B), which authorises disclosure
of a document for the purpose of enabling a designated authority
to discharge specified functions. The Commissioner has not been
designated under this section.
It follows that Mr Heathcoat-Amory has not identified
a ground upon which the Commissioner is entitled to have access
to any document or information in the hands of the DTI."
25. From my discussions with the DTI, and from
a written Parliamentary answer given by the Secretary of State
for Trade and Industry,[23]
it appears that the advice given to me broadly corresponds to
that received by the Department as to the inapplicability to my
investigation of any of the exemptions contained in section 449.
26. This obstacle has not proved to be as disabling
to my inquiry as might have been the case. In his letter of 27
March Sir Michael Scholar had told me that his Department wished
to be as helpful as it could within the statutory constraints
by which it was bound. By this he meant that the Department would
indicate to me the original sources of relevant documents and
files which I could pursue with those who now had custody of them—who
were not covered by the Companies Act prohibitions.
23 Hansard, 2 April
2001, cols 6W and 7W. Back
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