7. Letter to the Chairman from Rt Hon
Patricia Hewitt MP, Secretary of State for |
Trade and Industry, on the Enterprise
Thank you for your letter of 30 April, about the
Committee's consideration of the Enterprise Bill.
You asked first of all about the criteria that would
be applied by public authorities when considering a request for
information from an overseas authority under Part 9 of the Bill.
I am pleased to enclose, for the Committee's information, a set
of draft criteria, which Melanie Johnson circulated to members
of Standing Committee B on 30 April. The criteria will be subject
to consultation with interested parties before they are finalised
and formally published by the office of Fair Trading (OFT) when
the provisions to which they refer enter into force.
You also asked for details of any representations
we have received in relation to the human rights aspects of this
Bill. We have received no such representations on the consumer
or insolvency aspects of the Bill. The only such representations
we have had on our competition proposals came in the responses
we received to the Competition White Paper that I published in
July 2001 (Cm 5233). Ten respondents raised the human rights implications
of our proposals to introduce criminal sanctions against individuals.
These comments centred on three areas
Ensuring a fair criminal trial where
there has been a previous civil finding that the company has breached
The need to avoid self-incrimination
as the OFT has the right to obtain evidence under compulsory powers
under the Competition Act 1998.
Separation of the investigating and prosecuting
We believe that these concerns are addressed in the
Bill and in the procedures that will implement the cartel offence.
We expect that in general, the OFT would seek to bring any criminal
proceedings before proceedings are brought in relation to the
prohibitions under the Competition Act 1998 or Articles 81 and
82, and to liaise with the European Commission in order to produce
this result. However, if civil proceedings were brought first,
the fairness of bringing any particular criminal proceedings would
need to be assessed on a case-by-case basis to ensure that there
was no question of prejudice.
The Bill provides a safeguard in Clause 188 with
regard to evidence obtained under compulsion using the criminal
investigation powers in Part 6. Clause 189 amends the Competition
Act 1998 so that the powers in that Act to obtain information
by compulsion cannot be used to incriminate an individual in a
prosecution of the criminal offence.
OFT and Serious Fraud Office procedures will ensure
that the investigation and prosecution are kept separate.
One respondent also raised the question of human
rights issues in relation to powers to carry out intrusive surveillance.
The OFT will be granted these powers subject to the safeguards
provided in the Regulation of Investigatory Powers Act 2000.
Two respondents raised the compatibility with the
Human Rights Act of our proposals for "super-complaints"
(both in respect of discriminatory measures and potential conflict
between a super-complainant being at the same time an enforcer
and competitor to the target of a super-complaint). One respondent
considered it necessary under the Human Rights Act to ensure that
parties had a right of appeal against the imposition of fines
by the Competition Commission for non-provision of information.
Another respondent considered that the transparency of Competition
Commission procedures warranted particularly careful consideration
in the light of the Human Rights Act.
I hope you find this information helpful.
10 May 2002