Joint Committee On Human Rights Appendices to the Minutes of Evidence

7. Letter to the Chairman from Rt Hon Patricia Hewitt MP, Secretary of State for

Trade and Industry, on the Enterprise Bill

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 competition law.

—  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 authority.

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

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