Enterprise Bill

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Mr. Field: On balance, I will withdraw the amendment, but a concern has been highlighted. I am reassured in part that a lot of consideration has gone into the provision and that it was not just added as an override. Clearly, there are distinctions between the 1987 Act and this Bill, not least in relation to the potential powers of the OFT, as we discussed at length earlier. One concern that arose was that the OFT had powers over and above those of an investigator and was much more similar to a prosecutor, which of course relates to the SFO's powers under the 1987 Act and the power to override.

I am not entirely comfortable with the explanation that we have heard. However, on balance, we probably want to move on at this juncture, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Field: I beg to move amendment No. 108, in page 134, line 43, at end


    '( ) For the purposes of this Part, 'privileged communication' shall have the same meaning as in section 30 of the Competition Act 1998.'.

The amendment is about good housekeeping as much as anything. Indeed, in the light of the explanation that we heard under the previous group of amendments, I hope that the Under-Secretary will be happy to take this amendment on board on the basis that good housekeeping means that the 1987 Act and this legislation should have parallels. There is also a view that the issue of privileged communication should at least be married up with the Competition

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Act 1998. It has more in common with the Bill than even the 1987 Act, which introduced the concept of banking privilege.

Our proposal is fairly straightforward. The concept of privileged communication should have the same meaning in the clause and the Bill as it does in section 30 of the 1998 Act. That change would avoid inconsistency, and I hope that it is not objectionable to the Under-Secretary.

Miss Johnson: I should like first to clarify what I think the amendment means. It is designed to align the meaning of the phrase ''privileged communication'' in part 6 of the Bill with the definition of ''privileged communication'' in section 30 of the Competition Act 1998. In fact, the term ''privileged communication'' does not appear in part 6, but I believe that the hon. Gentleman is attempting to align the definitions of information that is subject to legal professional privilege in the Bill and the 1998 Act.

The investigatory powers and the safeguards for their application are based on the powers conferred on the SFO by the Criminal Justice Act 1987. The provisions relating to the protection of legal professional privilege use different words from those in the 1998 Act but, in principle, the legal effect is the same.

OFT and SFO officers will work together on cartel investigations. The Government simply want to ensure that they operate under powers that are as similar as possible, so we want to retain the wording based on the 1987 Act. That is our rationale. In the light of that explanation, which is akin to the one that I gave on an earlier amendment, I hope that the hon. Gentleman will withdraw his amendment.

Mr. Field: We will be happy to do so, as we have made our point about the need for consistency. It would be perverse to have two, albeit slightly disparate, tests, given the strong connection between the 1998 Act and the Bill. However, we spent 15 years trying to align banking privilege to the 1987 Act. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Mr. Carmichael: I am delighted that legal professional privilege is in the clause, and that the Government accept that it is important. Will the Under-Secretary explain ''in the High Court'' in subsection (1)? Does it mean that privilege is allowed only in proceedings in the High Court, and not in summary proceedings, which in Scotland would be held in the Sheriff Court? If it does, I was not aware of it.

Miss Johnson: I am grateful for the hon. Gentleman's question, which I cannot answer at this point. [Interruption.] I may now be able to answer it. The answer is no. Subsection (3)(a) states that the High Court is also the High Court of Justiciary, so in that sense the privilege applies only to the High Court. I hope that that clarifies matters.

Mr. Carmichael: They are as clear as mud. Does ''in the High Court'' mean that legal professional privilege

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attaches to proceedings taken in the High Court of Justiciary, or is it suggested that privilege is somehow different in the High Court of Justiciary? If it is, I was not aware of it.

Miss Johnson: I will answer the hon. Gentleman's question in writing.

Question put and agreed to.

Clause 187 ordered to stand part of the Bill.

Clause 188 ordered to stand part of the Bill.

Clause 189

Use of statements obtained under competition act 1998

Mr. Waterson: I beg to move amendment No. 109, in page 135, line 22, leave out from '2002' to end of line 26.

It will be obvious from the wording of the amendment that my comments will be short. Clause 189 deals with the use of statements obtained under the Competition Act 1998. Such statements are obtained in what are in effect civil proceedings, and are used under legislation that introduces some serious criminal sanctions, as we debated at, perhaps, inordinate length. The clause entitles the prosecution to use statements obtained under the Competition Act 1998 if they are inconsistent or contain voluntary admissions. The prohibition on the use of those statements should be wider than it is, as the statements were obtained in civil proceedings and therefore in a more relaxed atmosphere than subsequent criminal proceedings. The CBI supports the amendment. Great care should be taken when evidence in statement form is cross-fertilised from civil proceedings to criminal proceedings, not least because one hopes that the people involved in the civil proceedings will be as open and co-operative as they can be. It is in the interests of the Under-Secretary, the OFT and the relevant authorities to accept the amendment, so that people can be as helpful as they want in giving prior statements in proceedings under the 1998 Act.

6.30 pm

Mr. Djanogly: The clause recognises that there will have been civil proceedings before the criminal proceedings. Should not the OFT have to make up its mind whether to commit to a criminal trial first, and then effectively be stopped if it decides to go down the civil route before the criminal route?

Mr. Carmichael: I am not minded to support the amendment. The entitlement to put a prior inconsistent statement to a witness in the course of evidence-taking is important. That has particular implications in Scottish criminal procedure in as much as it can be adopted in certain circumstances; in any event, it can be used to strike at the witness's credibility. The deletion of the subsections would remove that and I can see no good reason to do so.

Miss Johnson: The safeguard prevents statements that have been obtained under compulsion in a civil

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investigation under the Competition Act being used against the person who made them for the purpose of prosecuting the new offence. It is common practice in criminal law for persons to lose that protection where they make inconsistent statements or voluntarily provide information. Our approach is entirely consistent with sections 2(8) and (8AA) of the Criminal Justice Act 1987. We therefore resist the amendment. I hope that the hon. Gentleman will withdraw it.

Mr. Waterson: We are all keen to make progress. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 189 ordered to stand part of the Bill.

Clause 190

Surveillance powers

Question proposed, That the clause stand part of the Bill.

Mr. Djanogly: Is it right to give the chairman of the OFT, who will most likely be a business man selected by the Government, the power to authorise the planting of surveillance equipment in residential or hotel premises or private vehicles? In an earlier debate, the Under-Secretary said that would happen only where it had to be done urgently. One can normally have access to a judge fairly urgently and I do not think that this proposal is appropriate. Why is the use of surveillance not to be authorised by a judge on a case-by-case basis? Is there any precedent for such surveillance powers to be given on this basis or will the Regulation of Investigatory Powers Act 2000 set a new course in that respect?

Mr. Field: I have grave concerns about some of the civil liberties implications of this proposal. I hope that it is not simply a matter of the measure being lifted intact from the 1987 Act and plonked into the relevant slot in this Bill. Extensive surveillance powers are being given to the OFT, which is predominantly an investigative as opposed to a prosecution body. The powers seem not only excessive, but possibly unnecessary. I would be interested in having guidance, both to alleviate the concerns expressed by my hon. Friend the Member for Huntingdon and myself, and to give me some idea why the powers are so extensive.

Mr. Carmichael: Like other hon. Members, I have some concerns about granting powers to the chairman of the OFT in such circumstances. The powers are fairly wide ranging, and I would be much happier if I thought that there was some judicial or even ministerial scrutiny that does not appear in the Bill. The clause will amend the Regulation of Investigatory Powers Act 2000. I wish to canvass the Minister on whether it is necessary to amend the Regulation of Investigatory Powers (Scotland) Act 2000, too. Perhaps she can erase my concerns on that point. As I understand it, it is not consistent with the Scottish Act to grant such powers. I am concerned that there might be no scrutiny other than that of the investigatory body.

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