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Lord Ezra: I have taken careful note of what the Minister has said, but there nevertheless appears to be a degree of contradiction in the provisions of subsection (2)(b) and subsection (2)(c). Paragraph (b) refers to the authorisation,

while paragraph (c) relates to the authorisation,

    "to take copies of, or extracts from, any such document".

I should have thought that, if, as the Minister says, paragraph (b) refers to wholly exceptional circumstances, that should be stated on the face of the Bill because, as I read the provisions, I am not exactly clear what we are considering given that paragraph (c) refers to taking,

    "copies of, or extracts from, any such document".

That seems to be multiple treatment of the same document.

Lord Simon of Highbury: I am not sure that it is multiple treatment; it is simply that we want to cover a number of options. It may be desirable for the officer to take copies if he can and he may well get the original, but the point is that he has to look for whatever evidence he can.

In the exceptional circumstances of a search taking place under a warrant in what could be a hostile situation, I think that it is reasonable that the officer should be able to copy documents which appear to him to be of a kind that may be required rather than him having to rely on the original only. All sorts of things may be happening. The circumstances can be violent. Some cases have been very difficult. What matters is that the officer can get evidence, whatever evidence, while he can. That is why we have provided for the possibility of an officer looking for both types of evidence.

Lord Kingsland: Perhaps I may invite the Minister to consider changing the order of the clause so that the normal behaviour of the investigating officer would be to take copies of, or extracts from, documents and that only when it is necessary in some specified (or, what is much more likely in this style of drafting, some unspecified) situation should the officer be able to take the original document. I say that because, if a company is facing an investigation, it would be extremely inconvenient for the company to lose its original documents. Therefore, it should be exceptional that an original document is taken. In withdrawing my amendment, perhaps I may suggest that the Minister considers some way of reordering the construction of that subsection.

Lord Simon of Highbury: I am very clear about the point that has just been made. Perhaps I may be allowed to reflect on it.

Amendment, by leave, withdrawn.

[Amendments Nos. 127 to 134 not moved.]

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Lord Kingsland moved Amendment No. 135:

Page 15, line 21, leave out ("relating") and insert ("necessary").

The noble Lord said: This amendment relates to subsection (3) of Clause 28 and to the circumstances in which a justice of the peace,

    "is satisfied on information on oath that it is reasonable to suspect that there are also on the premises other documents relating to the investigation".

The amendment seeks to replace the word "relating" with "necessary". I beg to move.

Lord Simon of Highbury: We have already had similar amendments from the noble Lord, Lord Kingsland. As I previously indicated, I consider this limitation would be unduly restrictive of the director's power to require the production of documents. In this instance, the power concerns entering premises under warrant where relevant documents are likely to be destroyed, removed, concealed or tampered with if they were required to be produced. In these circumstances, the warrant may also authorise action to be taken in respect of other relevant documents (that is, other than those thought likely to be destroyed). The investigating officer would have to make a precise on-the-spot judgment that such documents were necessary.

In the aim of general consistency with similar clauses about which we have argued previously, we believe that "relating" allows the person on the spot the right amount of judgment to be able to procure and seize the information that is necessary for the investigation. I have spoken in a similar vein before and it probably does not surprise the noble Lord that I ask him whether he is prepared to withdraw the amendment.

Lord Kingsland: I am not in the least surprised by the Minister's response. Nevertheless, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Kingsland moved Amendment No. 136:

Page 15, line 22, after ("shall") insert ("specify those documents and").

The noble Lord said: I am a touch more optimistic about the Minister's likely response to this amendment because it relates to the next line of subsection (3), which states:

    "relating to the investigation concerned, the warrant shall"--

and the amendment seeks to insert the words, "specify those documents and" before,

    "also authorise action mentioned in subsection (2)".

I should like to speak also to Amendment No. 137, which I believe to be straightforward. The amendment seeks to remove "document" and insert "documents".

6.30 p.m.

Lord Simon of Highbury: The director may obtain a warrant where he suspects that there are documents on premises that he could require under Clause 26(2) but which he suspects would be tampered with or destroyed if he did require them. He can then exercise the search powers in relation to documents of that kind. Under

17 Nov 1997 : Column 412

Clause 28(3) the warrant may also authorise him to search for other documents relating to the investigation concerned. These are relevant documents that he does not suspect would be tampered with or destroyed. Amendment No. 136 would require the warrant to specify what these documents were rather than enable the exercise of the power to search for such documents on the spot.

As I said in relation to a somewhat similar amendment on unannounced entry, investigation of one document may well indicate that other documents may contain evidence relating to the cartel or other anti-competitive behaviour. It is not clear what would happen if the amendment were accepted. Would the investigating officer have to try and exercise the powers in Clause 26 to obtain the documents and, if refused, go back for a further warrant? Is that effective investigation? I think not. I therefore believe it right that the director should be able to obtain, under a warrant, this additional power to search for relevant documents. I do not believe that the power should be restricted, as it would be, by the amendment. In those circumstances, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Skelmersdale: Before my noble friend decides what to do with his amendment, I observe that in line 21 the Bill specifies "other documents", whereas in line 23 the reference is to "any such document". Should not the two be the same, either singular or plural?

Lord Simon of Highbury: I believe that "any such document" falls within "the documents".

Lord Kingsland: If I correctly understand the response of the noble Lord, he believes that there are many circumstances in which it would be extremely difficult for the investigating officer to identify the documents concerned. But if that officer takes the view that those documents are relevant, how can he not know what they are?

Lord Simon of Highbury: When the officer arrives he may not know the relevance of a particular document. When he is there he understands the relevance of one document and his train of thought may then lead him to other documents. As I said in response to an earlier intervention, this is a document which falls under the generality of "the documents". At any stage he may be surprised by the thought of what document may be relevant to his train of thought during the investigation. This is a dynamic situation which requires flexibility on the part of the investigator.

Lord Kingsland: I look forward to reading the response of the Minister in Hansard tomorrow. I believe that my point stands. In order to have a right to acquire a document the document must satisfy the test of relevance. In order to apply that test the investigating officer must at least know the class of documents which is relevant, if not the individual documents. Surely, there is no objection to that being specified in the warrant.

Lord Simon of Highbury: Since I believe that this debate could continue for some time, particularly the

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difference between the singular and plural, I now understand the point that is made. I shall think about it carefully. We shall have another opportunity to discuss it.

Lord Kingsland: I am much obliged to the noble Lord. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 137 not moved.]

Lord Kingsland moved Amendment No. 138:

Page 15, line 25, at end insert--
("(4A) The warrant referred to in subsection (1) shall state the purpose for which the investigation is being made and the penalties for failing to comply with a request by an investigating officer.
(4B) Any person entering the premises by virtue of a warrant under this section shall allow the occupiers reasonable time to contact their legal representatives before exercising any of the powers conferred by subsection (2).
(4C) Any person entering unoccupied premises by virtue of a warrant under this section shall refrain from exercising the powers under section (2) until reasonable opportunity has been given for an officer or senior employee of the company to be present.").

The noble Lord said: Amendment No. 138 seeks to insert a long passage at the end of subsection (4) of Clause 28 at line 25 on page 15. I shall not read it out. The passage specifies what the warrant should contain. I should like to speak also to Amendment No. 139, which again is related to the contents of the relevant warrant. I beg to move.

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