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Lord Kingsland: I thank the Minister for his reply. However, I should just like to expand on one point that I made when introducing the amendments. It is the point about the cleaning-lady. It is not her level of responsibility that is relevant; it is the imbalance, in authority between the person who is seeking information and the person who is asked to render it. If you have a big imbalance of authority between those two people, you are much more likely as an investigator to extract evidence to which you are not entitled.
Unlike the Minister, I have never experienced one of these investigations but I understand that they can be tough or even brutal. If a senior investigator comes into an office and addresses a very junior member of staff in a forceful way, he may extract from that member of staff a whole range of evidence to which he is not entitled. Although we have yet to see the incorporation of the European Convention on Human Rights in our law, we all know that the law in our country is that evidence illegally obtained is, nevertheless, evidence. Therefore, the relationship between the investigator and the investigated party on the ground is an important one. It is that relationship that the amendments seek to address.
Lord Peston: Perhaps I may say a few words before the noble Lord decides what to do about his amendment. I have listened to what the noble Lord said, but I would ask him to reflect back a few years to a time when he was a junior member of staff. Does he recall, as I do, that very frequently the junior member of staff who produces a document is often the only one who understands it? Indeed, on many occasions when I was a young man my senior would say, "Oh, he knows what this is all about, ask him".
I understand the noble Lord's fears, but what would worry me a little about the precise wording of the amendment is the fact that, as it is written, it would mean that only senior people--who, I have to say, having become one myself, frequently do not know very much about such documents even though they may be produced under their name--could be asked for such explanations. The wording of the amendment would prevent a junior person speaking on such matters. That can always be dealt with by redrafting but we ought to be careful of assuming that the senior person who is always responsible in theory is responsible in practice and that he understands what the matter is all about. I speak for myself, but my experience is that the senior
person often does not know what the matter is about. His only good idea is to get the junior person to do the work.
Lord Kingsland: I am at the moment experiencing what it is like to be a junior member of a new organisation. I assure the Committee that the experience is extremely immediate. This matter need not be a difficulty. All that it requires is for the senior member of the investigated company, having been questioned by the investigator, to ask the junior member to reply to certain questions or produce certain documents. That is not precluded. I agree with the noble Lord, Lord Peston, that there are circumstances in which the person at the coalface knows best. However, there is nothing to prevent the Bill permitting appropriate delegation by a company official. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Peyton of Yeovil moved Amendment No. 98A:
The noble Lord said: This is a simple and brief amendment but its brevity is matched only by its reasonableness. I very much hope that the Minister will appreciate that fact. Clause 26(1) states,
My amendment seeks to remove the words "he considers". Clause 26(1) would therefore state,
I cannot see any reason why the words I have mentioned are necessary except as a grotesque example of insisting upon belt and braces and suspenders too. I hope that the noble Lord will resist this temptation which is always put in front of Ministers. Again and again, Ministers are told, "Minister, there is only one thing that you can really count on and that is your own judgment. You must never allow any words to be included or taken out which will have the effect of removing that subjective judgment. Objective judgment is to be avoided at all costs."
We are all conscious that Ministers and others, to whom considerable and wide powers are dedicated, find it almost impossible to admit that there exists even the remotest chance of those powers being abused while they are in charge. However, that does not prevent the frequent and regular abuse of powers in high places. Law reports are littered with them; parliamentary debates are littered with them; even your Lordships' House, which is not given to loud complaining, has from time to time heard complaints about the abuse of powers. Therefore, I do not think it is too much to suggest that the power to insist upon the production of a specified document should depend upon the fact that that document relates to the matter under investigation. It is simply not good enough for people to excuse themselves from all examination by simply saying, "I thought it referred to or concerned" this or that. I hope that the noble Lord will accept the force of that argument, or that at the very least--I say this with much more hope on this amendment than on my previous
Baroness O'Cathain: I understand exactly what my noble friend Lord Peyton says and his powerful argument with regard to removing the words, "he considers". However, my mind was racing ahead, particularly when my noble friend used the expression "belt and braces". I believe that under his proposed amendment there would be more belt and braces. One could be flooded out with paper. I refer to any document, be it a tram ticket, a train ticket or a menu. One could lose the relevant document because every office now contains so much paper. I should have thought the director general would have to be able to sift through that. He should specify exactly what he thinks relates to a specific investigation. I fear one might confuse the issue by allowing him to be submerged by a great amount of paper.
Lord Kingsland: I shall move, or rather speak to, Amendments Nos. 99, 111, 117, 118 and 130.
Lord Peyton of Yeovil: I hate to interrupt my noble friend but I hope that he will at least refer to the amendment I moved.
Lord Kingsland: Of course I shall refer with total and unqualified approbation to the amendment that my noble friend has moved.
Lord Williams of Elvel: Is it not the case that, an amendment having been moved, the Committee should speak to that amendment whatever the grouping may be?
Lord Kingsland: I shall speak to all those in the group, as I believe I indicated.
Baroness Nicol: All that is wrong is that the noble Lord needs to acknowledge the fact that Amendment No. 98A has been moved in saying that he wishes to speak to Amendment No. 99 and the others. It is quite simple really.
Lord Kingsland: I thought that what I said, rather incompetently, was in effect that. However, I apologise if I did not get my line of sight exactly right. I shall endeavour to improve the focus as I work my way through these amendments.
Baroness Nicol: I think it was the attempt to move Amendment No. 99 which upset people.
Lord Kingsland: I beg the pardon of the noble Baroness. These amendments for the most part seek to tighten up the criteria by which documents are considered by the director general. Clause 26(1) states,
Page 13, line 17, leave out ("he considers").
"For the purposes of an investigation under section 25, the Director may require any person to produce to him a specified document which he considers relates to any matter relevant to the investigation".
"a specified document which relates to any matter relevant to the investigation".
5.15 p.m.
"For the purposes of an investigation under section 25, the Director may require any person to produce to him a specified document which he considers relates to any matter relevant to the investigation".
17 Nov 1997 : Column 395
Amendment No. 99 seeks to include the words "is necessary" to the investigation. The wording of the Bill seems to us to be too loose a criterion for the director general. It gives him too much scope in his choice of documents. Amendments Nos. 111, 117 and 118 in different contexts seek to do precisely the same.
In a different way, Amendment No. 130 also seeks to tighten up the circumstances in which the director general exercises his discretion. Clause 28(2)(e) states:
- "to require any information which is held in a computer and is accessible from the premises and which the named officer considers relates to any matter relevant to the investigation".
The amendment seeks to remove,
- "which the named officer considers relates to any matter relevant to the investigation",
- "is specified in a notice under section 26(2) issued in relation to the".
Lord Simon of Highbury: First, I speak to Amendment No. 98A and the general point raised by the noble Lord, Lord Peyton. I shall then attend to the other amendments which, as the noble Lord, Lord Kingsland, pointed out, are sequential.
As ever, we are thinking hard about striking the right balance between safeguarding the rights of those being investigated, ensuring that the investigation is properly carried out, and that the overall regime acts as a deterrent.
Clause 26 enables the Director General of Fair Trading to produce a specified document which he considers relates to any matter relevant to the investigation. Amendment No. 98A, moved by the noble Lord, Lord Peyton, removes the words, "he considers". The point was made by the noble Baroness, Lady O'Cathain, that if one takes out "he considers" one could find a flood of paper moving towards one at a rate of knots when considering the way in which the investigation may be conducted. However, that is not the point I wish to make in arguing that the amendment is not helpful.
The important point is that the director should be able to ask for a document that he thinks is relevant. Here we have the Catch-22 argument again. Until the director general has seen the document, he cannot tell that it is definitely relevant. For example, the director general may wish to see a director's diary because he considers it relevant in determining whether he attended a meeting at which he believed a cartel fixed prices. Until he sees it, he will not know whether or not it is a relevant feature.
The amendments remove that margin of appreciation or judgment which I am sure is important in properly determining that documents, in whichever category the director general considers should be produced, are relevant to the investigation. I argue that "he considers" is sensible as a limiting factor for the data flow but, more importantly, allows the director general to determine the nature of the investigation. Under those terms, I believe that it is important that his personal consideration is a vital element in the chain of inquiry.
Amendment No. 99, and those relating to it, put down by the noble Lords, Lord Lucas and Lord Kingsland, and the noble and learned Lord, Lord Fraser, relate to the words "is necessary". We believe that to insert "is necessary" would make matters worse. The overall result could increase the ability of undertakings to challenge the right of the DGFT to require the production of documents if he could not meet the standards of demonstrating objectively that the document related to the investigation. This would be a potential recipe for frustrating an investigation rather than a justifiable protection for those being investigated.
Amendment No. 101A would deprive the director general of the ability to ask for classes of document. Each and every document would have to be specified. It would be a chicken and egg situation. Until the director can identify a document, he will not be able to require its production. But he would not know precisely what documents he should ask for until he had seen and identified them. Hence we believe that he must be able to ask for categories of document. The point was raised earlier by a noble Lord who is no longer in his seat. I could have answered his question now as regards category of documents. The category may be invoices, as the noble Lord indicated. It could be agreements or contracts. In this modern day and age it might even be printouts and spreadsheets since we are talking about the computerisation of information as well. All those would be categories of documents. Unless the director general is absolutely clear beforehand, he would be wise to ask for a category of document if he considered that it had an implication for the way in which the investigation was progressing.
Again, I believe that the tone of Amendment No. 101A is a recipe for frustrating the investigation rather than a justifiable protection for those being investigated.
What is important here is the balance between the capacity of the director general to move towards discovery in an appropriate manner, as he considers, and the protection of the individuals who are producing the data. Our belief is again--I am becoming rather repetitive--that in many of the cases which are difficult, where we seek to improve our capacity to find against, it is often difficult and frustrating for the director to move forward. We believe that the balance in the new framework of the Bill gives the director general a better opportunity to get at the hard cases, if I may so put it.
Finally, we do not believe that the amendment in the name of the noble Lord, Lord Peyton, achieves the right balance. Therefore we ask the noble Lord whether he is prepared to withdraw his amendment.
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