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Lord Ezra: My name is attached to Amendment No. 139. I believe, however, that the point is better covered in the proposed new subsection (4C) of Amendment No. 138 and the wording,
- "reasonable opportunity has been given for an officer or senior employee of the company to be present".
I believe that that is preferable to making it an absolute condition. Therefore, I should like to associate myself with the amendment.
Lord Simon of Highbury: I thank the noble Lord, Lord Ezra, for that clarification. I would have found it quite difficult dealing with the two amendments. His intervention is much appreciated. Amendment No. 138 in the names of the noble Lords, Lord Kingsland and Lord Lucas and the noble and learned Lord, Lord Fraser, puts forward three insertions to Clause 28. The first would require a warrant authorising entry to premises to state the purpose for which the investigation was being made and the penalties for failure to comply. Amendment No. 106 raised a similar point in relation to the authorisation of entry under Clause 27. I indicated then that I would be willing to reflect on the matter, and I am happy to do so as well in relation to warrants under Clause 28.
The second part of Amendment No. 138 deals with the opportunity to contact legal representatives. This was discussed in relation to Clause 27. As I said then, the effect of commission statements, to which the director is to have regard, is that a company would be allowed a reasonable time in which to contact legal
representatives provided the delay did not impede the investigation. We therefore do not see a need for amendment to the Bill. However, I said that I would give consideration to the matter when we debated Clause 27.The third part of Amendment No. 138 deals with entry into unoccupied premises, as does Amendment No. 139 in the name of the noble Lord, Lord Ezra. It seeks to provide an opportunity for a representative of the company to be present before the powers under the warrant are exercised, but it does not preclude the powers being used if such an opportunity has lapsed without being taken up. I can understand the concerns about entry to unoccupied premises. I am not convinced that there needs to be a provision of the kind suggested by the last part of Amendment No. 138. I am willing to reflect upon it. I shall give careful consideration to the first two parts of Amendment No. 138 and subsume to a large extent the point made by the noble Lord, Lord Ezra. On that basis, I hope that the amendment will be withdrawn.
Lord Kingsland: On that basis, I am delighted to do so. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 139 and 140 not moved.]
Lord Kingsland moved Amendment No. 141:
The noble Lord said: I am tempted to say that the amendment is wholly self-explanatory. I beg to move.
Lord Simon of Highbury: I agree entirely with the principle that documents should be kept no longer than is necessary. Under those circumstances, I am willing to consider this point with a view to returning on Report with an appropriate amendment.
Lord Kingsland: I thank the Minister for that reply. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 142 to 144 not moved.]
Lord Kingsland moved Amendment No. 145:
Page 15, line 33, after ("for") insert ("no longer than is necessary for the purposes of the investigation and in any event for not longer than").
After Clause 28, insert the following new clause--
(" . Where any functions of the Director under sections 25 to 28 are, in accordance with Schedule 10, exercised by a regulator, the regulator shall exercise those functions jointly with the Director.").
The noble Lord said: The amendment relates to a matter which was debated fully on the first day in Committee. I do not wish to oblige the Minister to enter into the fundamentals of that debate. I know that he has given an undertaken to consider carefully the relationship between the director general on the one hand and the regulators on the other. I wish merely to draw his attention to the fact that here is another area
Lord Simon of Highbury: The amendment would require the Director General of Fair Trading to be involved whenever a regulator took action under the investigation powers in the Bill, whether to require documents or to enter premises. That is its fundamental point. I recognise and appreciate the spirit with which the noble Lord raised the amendment with me in general terms. No doubt we will return to a fuller discussion about the role of the regulators on another day. As he is aware, I do not believe that a requirement for double banking between the regulators and the director in undertaking investigations would be an efficient or effective way of operating.
However, the amendment as such prompts the question whether the Bill, as drafted, enables a regulator and the Director General of Fair Trading to work together on investigations where both agree that that would be helpful. I am doubtful that it does. It might well provide useful flexibility if it did. I should like to reflect further on that point with the possibility of bringing forward a separate amendment on that on Report. On that basis, I invite the noble Lord to withdraw the amendment.
Lord Kingsland: I thank the Minister for his reply. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 29 [Privileged communications]:
Lord Fraser of Carmyllie moved Amendment No. 146:
The noble and learned Lord said: This is a short but important point given the interplay between the provisions in Clause 29 and Clause 58 which bring into play the jurisprudence of the ECJ. Of course advice given by a lawyer to his client in the UK would normally be privileged. We are concerned that, following a case in the ECJ which I understand is AM and S, where the legal advice was given by a qualified lawyer but one who was employed in-house, the privilege that would ordinarily be extended to a legal adviser and his client has been abandoned, withdrawn or lost. If that is the case, and as the pattern is pretty clear now in some large concerns of having an extensive legal corps working in-house, it would seem desirable that the confidentiality we would otherwise expect to be allowed should be maintained. It is for that reason that we have tabled the amendment. I beg to move.
Lord Haskel: Far be it from me to become involved in a legal argument with such an eminent noble and
We have always been clear that we wished to depart from the narrow definition of privileged communications under EC law, which extends only to advice given by an independent lawyer, which is interpreted as not including in-house lawyers. The fact that the Bill refers to legal professional privilege in High Court proceedings signals that this is an issue on which EC law is not to be applied by the governing principles clause.
The position of 'in-house' lawyers was considered in a case in 1974 in your Lordships' House called Alfred Crompton Amusement Machines Ltd versus Customs and Excise Commissioners. Lord Cross said:
We consider therefore that the Bill already achieves what the noble and learned Lord wants.
Lord Fraser of Carmyllie: Clearly there is nothing between us as to the eventual outcome that we wish to achieve. However, if it is intended to send a signal, it has been a faint one. We are concerned that the broader approach set out in Clause 58 would run contrary to what the noble Lord has said. As our objective is the same, we will look at the matter again. We should not like there to be any risk that such privilege would be lost or withdrawn. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 30 agreed to.
Page 16, line 11, at end insert--
("(4) In this section "professional legal adviser" includes employed professional legal advisers.").
"The Court of Appeal held that Mr Justice Forbes was wrong in holding that there was any distinction for the purposes of a claim to legal professional privilege between solicitors in private practice and salaried legal advisers and the appellants did not challenge that view in their appeal to this House".
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