| Companies (Audit, Investigations and Community Enterprise) Bill [Lords]
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Jacqui Smith: Perhaps you could advise us, Mr. Conway. The hon. Gentleman has now moved on to amendments Nos. 26, 27, 30, 31 and 32, which are about times. I understood that we were going to discuss those in a separate bunch from the amendments about which the hon. Gentleman has already spoken. The Chairman: We are taking them as a separate bunch, but I had not spotted that we had got on to them. They are related to the group under discussion. Mr. Mitchell: Yes, Mr. Conway. The points that I am making specifically relate to different amendments, but it may be helpful to the Minister if I make my case in respect of clause 21 in one go. That may also speed up the proceedings of the Committee. The Chairman: Order. It is acceptable to lump the amendments together if that helps the Minister, the mover of the amendments and the Cttee. We do not like breaking across clauses, but the amendments all relate to the same clause. If it facilitates the debate, and as the issues are related, I am happy to discuss the two sets of amendments together. If that facilitates the debate, it will not be out of order. We are therefore now also considering the following amendments: No. 26, in
Column Number: 98
', not exceeding one month,'.
'not exceeding one month (or such longer periods as may be authorised by the Secretary of State)'.
clause 21, page 25, line 29, at end insert—
We define a normal day as being between 9 am and 5.30 pm, Monday to Friday. However, we are prepared to take into account certain circumstances in which being restricted to those times would seriously impair the work of officials. The limitation would apply both to the power of entry and to the period during which an investigator or inspector may remain on the relevant premises. The explanatory notes state, in paragraph 131:
In another place the Government postulated a number of alternative situations as reasons for not rising to the drafting challenge, such as the possibility that a company could trade only at night, or that it might not have its own normal business hours, or that it might change them in order to frustrate a legitimate investigation. My amendment would provide certainty and clarity about what, in most cases, would be a ''reasonable time'', while preserving the power of inspectors to operate at other times where otherwise their investigations would be seriously impaired. It remains the case that at other times and during those other periods, investigators will be required to act at reasonable times. The amendment would, in effect, impose on the investigator a duty to consider carefully whether acting outside hours that would not ordinarily be regarded as reasonable would nevertheless be necessary in any particular case because to do otherwise would impair his or her work. I turn now to amendment No. 30, of which amendment No. 31 is a variant. Amendment No. 30, likewise, would place limits on the wide powers of officials to enter and remain on relevant premises that are contemplated under new section 453A of the Companies Act 1985. The purpose of the amendment is to impose a temporal limit on the length of time—presently limited only by what an inspector or investigator thinks is necessary to ''materially assist'' them in discharging their function. Having entered, Column Number: 99 investigators and inspectors may remain on the relevant premises—which, as I said, may be mixed between business and domestic activity.The extension and expansion of investigators' powers to acquire information, which are affected by the Bill, ought to assist them to complete inquiries more efficiently than hitherto. A limit on the period for which investigators can remain on premises would ensure that they did not prolong their time longer than is necessary, and conducted themselves expeditiously. In the carrying out of investigations, it would provide an effective safeguard against possible abuse in the form of excessively long-drawn-out investigations that cease to be fruitful and cross the line into oppression. It will be recalled that the investigations under section 447 of the 1985 Act—in contrast to those to be publicly reported under section 431—are intended to be conducted confidentially and without publicity. To take the example of a business that is largely a front-of-house operation, where customers or the public have access, the fact of an investigation would be very effectively and publicly advertised by the persistent presence over a period of DTI inspectors on the premises asking questions of employees in front of customers, or even of customers themselves—that is now envisaged, as I understand it, in clause 19, which amends section 447(3) of the 1985 Act. Nothing could be calculated to cause greater damage to the reputation of a company and its business, which might prove to have been innocent of any wrongdoing whatever. We would give favourable consideration to an appropriate Government amendment that would allow the extension of that period, where justified by circumstances. Having decided not to follow the idea that I mentioned to the Committee a moment ago of specifying a very long period to tempt the Government to circumscribe the length of time that someone can remain on premises, I have decided that the period should not exceed one month—but it could be longer if the Secretary of State agrees. Finally, I come to amendment No. 34, which the Minister will find irresistible. The amendment seeks to add to new section 449 of the Companies Act 1985, which is entitled ''Provision for security of information obtained'', a new paragraph, (1)(d), dealing with the important issue of security of information obtained through the use of the Secretary of State's investigatory powers, and limiting the persons to whom such information may be disclosed. New section 449 contemplates information being obtained in consequence of the exercise of the inspector's powers of entry under new section 453A, which also covers, in subsection (4), persons accompanying inspectors or investigators on such visits. The amendment includes such persons in the list of persons who are prohibited from disclosing information other than as provided for in new schedules 15C and 15D to the 1985 Act. To omit such Column Number: 100 persons from the list of those subject to limitations on disclosure of information so obtained would be a serious lacuna in the section 449 protections.
10 amProposed new section 449 states:
Mr. Mark Fisher (Stoke-on-Trent, Central) (Lab): I have listened carefully to the hon. Gentleman. I am sure that the Minister's brief states strong resistance to all the amendments, both on clause 19 and this clause. ''Do not be seduced,'' her officials will be saying, ''by the hon. Gentleman's blandishments and blithe confidence in his amendments.'' Notwithstanding that, I hope that between now and consideration on Report she will think carefully about the general thrust of what the hon. Gentleman has been saying. All these amendments say that Parliament must think carefully about the way that we word powers given to civil servants. Because the Minister has total confidence in her carefulness, reasonableness and intelligence, and in the carefulness, reasonableness and intelligence of her ministerial colleagues, she knows that she and they will not abuse these powers. But we always legislate not just for the Ministers who will introduce the powers, but for future Ministers, who often act in very different circumstances. Future Governments may have very different intentions and different pressures on them. We all know from bitter experience in recent years that the thing that most undermines confidence in Parliament and most leads Parliament to take bad decisions is Ministers' sense that something has to be done in response to a particular crisis. In those circumstances, the hon. Gentleman's warnings about the powers that are delegated to civil servants are very important. In 10 years, when some nasty little crisis arises in the financial world, a Minister will find it hard to resist when civil servants say, ''Look, Minister, we have the powers. We have to go in.'' When Downing street says, ''Do something about this—we have to show that we are tough on these problems,'' the delegated powers that Parliament gives to civil servants can be treated in a very different way. The hon. Gentleman was careful to heap praise on the Minister and the Secretary of State for being reasonable people. He was genuine in that. These are Column Number: 101 reasonable Ministers and we can be confident that they will not allow their civil servants to abuse these powers. But I hope that between now and consideration on Report the Minister will consider the wording and perhaps devise some small but crucial amendments to some of these powers to ensure that we retain ministerial control over some powers in the Bill so that they cannot inadvertently be misused in different circumstances in the future.
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