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Clause 183
Investigation of offences under section 179
Mr. Djanogly: I beg to move amendment No. 94, in page 132, line 41, at end insert—
''insofar as relevant to the investigation of the offence under section 179 which it is suspected has been committed''.
The fundamental effect of clause 183 is to provide the OFT with the same powers that the SFO currently has under the Criminal Justice Act. Again, the Government seem to be introducing provisions—although the Under-Secretary will deny this—that have the implication of undermining the SFO and that undermine the OFT in the process. In the context of our earlier debate on initiating proceedings, I mentioned the potential problems, in relation to the powers of the OFT and SFO, for the transparency and reputation of this country's courts.
We have no less of a problem over giving the OFT new powers of investigation. Those powers could significantly undermine the business community's confidence in the OFT, which is currently based on its understanding that the OFT is part of a system that ensures fair trade, rather than being, conceptually, a criminal agency. In any event, the amendment is appropriate in that any investigation undertaken should be relevant only to the suspected criminal infringements of clause 159.
I heard the Under-Secretary say earlier that the Government do not immediately intend to turn the OFT into a prosecution agency, but that is the clear purpose of this legislation. If that is to happen, we must look at the matter in a different light from that in which we have in the past. The amendment might give some small comfort to companies that an anti-cartel investigation mounted by the OFT will not be used as some kind of general fishing expedition.
Mr. Carmichael: I support wholeheartedly the amendment that the hon. Member for Huntingdon has proposed. At the moment, I am seriously concerned that clause 183(2) as currently worded will be a licence for fishing expeditions. One always
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remembers, of course, that Al Capone was caught for his tax evasion and one can imagine that some minor offence might be the basis on which the OFT goes into a company and that, once there, it will run amok. There must be proper and meaningful controls over that in the Bill, and the amendment would achieve that.
Miss Johnson: I think that there is some misunderstanding about what the amendment would achieve. I hope to persuade Opposition Members not only that they should support anything that brought Al Capone to justice—if there has been an implication of anything different—but that the amendment is unnecessary and superfluous. It seeks to limit the circumstances in which the OFT can use its powers of criminal investigation to investigate suspected cartel offences, in order to ensure that the OFT uses its tough new investigatory powers only in appropriate circumstances. We believe that that is a fit and proper safeguard and have already included an adequate provision to that effect.
Subsection (2) states that the criminal investigatory powers are exercisable
''only for the purposes of an investigation under subsection (1)''.
Under subsection (1), the OFT may only
''conduct an investigation if there are reasonable grounds for suspecting that''
the cartel offence ''has been committed''. I entirely sympathise with the points that the hon. Members for Huntingdon and for Orkney and Shetland (Mr. Carmichael) made, but I believe that the amendment is otiose.
Mr. Field: When the Under-Secretary referred to clause 183, she said that the OFT may conduct an investigation only if there are reasonable grounds. That is not what subsection (1) says. It gives far broader discretionary power and does not confine the OFT's power in the manner that she says it does. It gives almost carte blanche discretion, provided that there are reasonable grounds. The word ''only'' does not appear in subsection (1) at all.
5.15 pm
Miss Johnson: Subsection (2) in my copy of the Bill says:
''The powers of the OFT under sections 184 and 185 are exercisable, but only for the purposes of an investigation under subsection (1)''.
The word ''only'' does appear.
Mr. Field: The hon. Lady is right that subsection (2) is contingent upon subsection (1), but subsection (1) gives a very wide discretion. The word ''only'' does not appear in it.
Miss Johnson: I can read what subsection (1) says, as anyone can. It says:
''if there are reasonable grounds for suspecting that an offence under section 179 has been committed.''
It is specific and, in turn, refers to section 179 and the offence that we are talking about. There is a direct link.
I assure the hon. Gentleman that the Government's intention in the matter is exactly the same as his. There
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is no difference. If for some reason the lawyers believe that the Opposition have raised further points, I shall certainly reconsider the clause. However, I believe that the amendment is superfluous and that the clause addresses the matter just as the hon. Gentleman and the Government would like.
Mr. Djanogly: I hope that the Government have realised that there is a problem with the wording, in so far as it would certainly be better if the word ''only'' were put in as the fourth word in subsection (1). To the extent that the Under-Secretary has said that the intent is that it will apply only in respect of section 179, I am pleased and, on that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendment proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill.
Question agreed to.
Clause 183 ordered to stand part of the Bill.
Clause 184
Powers when conducting an investigation
Mr. Waterson: I beg to move amendment No. 96, in page 133, line 2, leave out
'or any other person who it has reason to believe has relevant information',
and insert—
'past and present employees of the business of which the person under investigation is an officer or employee'.
The Chairman: With this it will be convenient to take the following amendments: No. 97, in page 133, line 17, at end insert—
'(5) A notice under subsection (1) must indicate the subject matter and purpose of the investigation'.
No. 98, in page 133, line 17, at end insert—
'(6) Any person of whom information is sought pursuant to this section shall not be required to provide such information, if the provision of that information would infringe the right to silence and/or the right against self-incrimination'.
No. 99, in page 133, line 17, at end insert—
'(7) Any person of whom information is sought pursuant to this section shall be entitled to have a lawyer of his choice present at all times throughout the investigation, and the OFT shall be required to advise'.
No. 101, in clause 185, page 134, line 9, at end insert—
'(3A) Any person of whom information is sought pursuant to this section shall not be required to provide such information, if the provision of that information would infringe the right to silence and/or the right against self-incrimination.'.
No. 103, in page 134, line 9, at end insert—
'(3C) Any person of whom information is sought pursuant to this section shall be entitled to have a lawyer of his choice present at all times throughout the investigation, and the OFT shall be required to advise.'.
No. 105, in clause 186, page 134, line 30, at end insert—
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'(4) Any person of whom information is sought pursuant to this section shall not be required to provide such information, if the provision of that information would infringe the right to silence and/or the right against self-incrimination.'.
No. 106, in page 134, line 30, at end insert—
'(5) Any person of whom information is sought pursuant to this section shall be entitled to have a lawyer of his choice present at all times throughout the investigation, and the OFT shall be required to advise.'.
Mr. Waterson: On any view, clause 184 and the following clauses contain some wide powers for the OFT. If members of the Committee have any role in life, it is to ensure that the powers are limited, clear and transparent and that they cannot be misused once the Bill becomes law. The amendments on clauses 184 and 185, grouped together, are designed to do just that.
We think that the current wording of clause 184 is too broad, as does the CBI, and could lead to individuals not actually related to the company using the offence and a potential investigation in a malicious or vexatious way. The requirement should be limited to past and present employees of the company. Indeed, that is precisely the group of people who are most likely to be involved in the investigations: people who are currently working for the company or previous employees, either in the role of providing information on behalf of the company or in the role of whistleblowers. It seems to us eminently fair and sensible that the power be limited in that way.
Amendment No. 97 makes it clear that the notice given under the clause must be specific. It must indicate the subject matter and purpose of the investigation. That is a question of fairness and due process. There has already been a concern expressed on the Opposition side of the Committee about potential fishing expeditions. We have seen investigations in the past where people in situ, as part of a dawn raid or whatever, grabbed everything in sight—computers, files or anything they could lay their hands on—only to have arguments later on about whether that was in the terms of the warrant that formed the basis of the investigation. The notice should be explicitly required to state the subject matter and purpose of the investigation. We cannot allow law-abiding businesses to find themselves investigated, raided or disrupted by people trying to find evidence on which to base an investigation, who have no prima facie reasons that they can set out in the notice for that investigation.
Amendment No. 98 is eminently fair; it would explicitly recognise the right to silence and the right against self-incrimination, with a requirement on the OFT to advise persons being investigated of their rights in that respect. That is another example of how the OFT investigations can and should be made more difficult—as long as the Minister is intent on bringing such draconian criminal sanctions. It is as simple as that. It is a question of fairness and following the same procedures as if people were being investigated for some existing criminal offence. There should be no infringement of the right to silence or the right against self-incrimination.
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We have already raised the issue of human rights legislation at least once. I cannot for the life of me understand how the Secretary of State feels able to declare that the Bill does not contravene the human rights legislation. There are substantial arguments involved; once investigations start revving up, and high-grade lawyers are instructed by those being investigated, we will see the arguments being deployed. Matrix chambers and others will be wheeled out to develop the arguments at length, and at great expense. We may as well have it out now rather than later.
Amendment No. 99 puts down a perfectly clear requirement, in the context of alleged criminality, that any person should be entitled to have a lawyer of his choice present throughout the investigation, and that the OFT should advise people of their rights in that respect. I would have hoped that I did not need to develop that argument at any length. It seems axiomatic that it is the sort of right available to suspects in any criminal situation. It is the Government's decision to turn the matter into a criminal one. Therefore, they must accept all that goes with a criminal investigation.
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