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Lord Simon of Highbury: There is a sequential logic in that statement which escapes me for the moment. Could the noble Lord elaborate, or perhaps he can explain it outside?

Lord Kingsland: Clause 27(2) gives a company a day's grace before the director general descends on it. Subsection (3) cuts down that right to a day's grace in certain circumstances. In my submission, the terms of subsection (3) are drawn so widely as to exclude any possibility of a company exercising its rights under subsection (2).

Lord Simon of Highbury: Again, this is an interesting point but it has escaped me. I shall have to ask the noble Lord to give me a tutorial on the point afterwards. In the circumstances, I wonder whether he is prepared to consider withdrawing the amendment.

Lord Kingsland: I would be delighted to receive a tutorial from the Minister on the subject, or, if he wishes, to give him one. The point is important to the Opposition. If the Minister is unable to accede to our amendment, we shall table it again at Report stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 109 to 111 not moved.]

5.45 p.m.

The Deputy Chairman of Committees (Lord Murton of Lindisfarne): In calling Amendment No. 112, if it were to be agreed to, I shall not be able to call Amendment No. 113, owing to pre-emption.

Lord Kingsland moved Amendment No. 112:

Page 14, leave out lines 19 and 20.

The noble Lord said: This point will be raised in different ways under Amendments Nos. 112, 113 and 114. It goes to the right to silence. In what circumstances can a person who is on the receiving end of an investigation be required to give an explanation? We should bear in mind that we are on the edge of incorporating the European Convention on Human Rights into law, unless the Opposition win the intellectual argument. The right to silence is enshrined in that convention. Does the Minister feel in those circumstances that he can sustain the power of the director general in the Bill? I beg to move.

Lord Simon of Highbury: I do not think it is unreasonable for an investigating officer to be able to require explanations of a document. The European

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Commission's inspectors are empowered to ask for oral explanations of books and business records on the spot when conducting investigations under Articles 85 or 86.

Without such a power, investigations could be seriously hampered. Perhaps I could give a couple of examples of the problems that might be caused. I was talking earlier about documentation from a computer, which is specifically included in the Bill. If Members of the Committee have seen a spreadsheet, they will know that it is difficult to track down the relevant information without an explanation of the sheet's structure or the way in which the formulae and equations are used and applied. If a private code, abbreviations or some kind of shorthand were being used, the document might be incomprehensible without an explanation.

The power of explanation is one that it is useful to have available. I hope that the noble Lord will not wish, on reflection, to emasculate the investigation powers in the Bill and will not press the amendment. However, I understand the issue of self-incrimination raised by him. The Bill will provide the same defences against self-incrimination as exist under European jurisprudence which provides that (and I quote from Orkem):

    "the Commission may not compel an undertaking to provide it with answers which might involve an admission on its part of the existence of an infringement which it is incumbent upon the Commission to prove".

Investigations are always bounded by European jurisprudence; and I would hope that that answer will be taken into account by the noble Lord, Lord Kingsland, in considering what to do with his amendment.

Lord Kingsland: It is true that the case of Orkem gives the individual the right to withhold any document which involves an admission. It does not, however, give an individual the right to withhold a document that may be used to establish the existence of anti-competitive behaviour. Under the jurisprudence of the European Court of Human Rights, the individual's rights are much broader. As the Minister will be aware, in the case of Funke v. France it is clear that the individual's rights go to the second as well as the first category. As we discovered in the recent case, it is clear that in financial and business matters the rights of the individual are no less than they are in other matters.

I submit that my amendment must be seen in the light of the jurisprudence of the Court of Human Rights and not just the jurisprudence of the European Court of Justice.

Lord Simon of Highbury: As I think I said in an earlier answer, we believe that the regime is fully compatible with the European Convention on Human Rights. In any event, as I also mentioned, we are currently bringing forward legislation which will require, so far as is possible, both primary and secondary legislation to be read and given effect to in the same way as is consistent with the European Convention. So that is in the body of law which is being developed. I should like the noble Lord to reflect on

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that. I shall carefully consider the position he has put, but we believe that the regime is compatible.

Viscount Trenchard: Perhaps I may speak in support of the amendment. I have sympathy with the view expressed by the Minister that it is reasonable to ask for an explanation. But, as drafted, the Bill states that the officer is entitled to receive the explanation that he requires. That sounds as though he is entitled to say what explanation he wants.

Lord Simon of Highbury: The meaning is that the officer requires an explanation. I shall reflect carefully on the use of the words and think hard about the point raised by the noble Lord, Lord Kingsland. It is a serious point. We are talking about developing law in terms of our position in the UK, inside the protection of the overall umbrella of the Orkem finding in European jurisprudence.

We are aware of the point raised and it bears consideration. However, we need a little more time.

Lord Kingsland: In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Kingsland moved Amendment No. 113:

Page 14, line 19, at end insert ("reasonably").

The noble Lord said: Amendment No. 113 seeks to convert a subjective discretion into an objective discretion. It relates to the requirement to produce documents and provide explanations. It converts the sentence,

    "to provide such explanation of it as the officer may require",


    "to provide such explanation of it as the officer may reasonably require".

The reason for the injection of the word "reasonably" is to make the discretion of the officer subject to judicial control. I beg to move.

Lord Simon of Highbury: I understand the concern that lies behind the amendment. I wholly accept that an investigating officer should only be able to demand such explanations of a person as may reasonably be required.

However, it is a principle of our law--I speak with a certain amount of deference to the noble Lord, Lord Kingsland--that, in exercising powers of the sort that we would be conferring on an investigating officer, the person having the power must behave reasonably. The law has that effect without express provision on the face of the Bill. On that basis the amendment is unnecessary and I hope that the noble Lord will feel able to withdraw it.

Lord Kingsland: In those circumstances I do not feel able to withdraw the amendment. The word "reasonably" is interpreted by the courts in a different way according to circumstances. Equally, the absence of the word "reasonably" can be read by courts in different ways. If the Minister feels that an officer ought to behave reasonably, that belief should be reflected in the text of the Bill by inserting the word "reasonably".

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Lord Borrie: Before the noble Lord sits down, perhaps he will consider this point. If there were judicial review proceedings against the officer in respect of what was required, surely it is existing law that if no reasonable officer would have done what that officer is alleged to have done, then judicial review proceedings would condemn what took place. In other words, the officer's action is reviewable because he did not act reasonably.

Lord Kingsland: Without being over dramatic in my response to the noble Lord, Lord Borrie, I remind him of the great case of Liversidge v. Anderson in 1940 when the then noble and learned Lord, Lord Atkin, sought to read "reasonable behaviour" into a subjective discretion and failed. The Opposition are seeking a guarantee. The Minister said that it was inconceivable to expect his officers to behave unreasonably.

Lord Borrie: Does not the noble Lord agree with me that it is generally accepted today that it was Lord Atkin who was correct?

Lord Kingsland: He was nevertheless in a minority of one in a House of five. I was about to invite the Minister on this occasion to accept the amendment.

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