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Lord Ezra: My Lords, Amendment No. 89 is grouped with this series of amendments and I should like to speak to it briefly. Its aim is to introduce a safeguard which allows the company under investigation to comment on the role of ex-employees being questioned, and on the appropriateness of so doing without wishing in any way to dilute the powers of the investigators. Obviously specific difficulties may arise where the departure of the employee was not on amicable terms.
Viscount Trenchard: My Lords, I wish to speak to Amendment No. 101, which is grouped with these amendments. I believe that the powers granted by Clause 27 to enter premises without a warrant are unduly strong and that the Bill would be improved if it ensured that investigating officers check that the people they deal with in exercising their powers under subsection (4)(b)(ii) of the clause are those who are responsible for any relevant document and understand the meaning and purpose of such a document. As drafted the Bill refers to "any person on the premises". The safeguard which Amendment No. 101 introduces would ensure that the investigating officer, in seeking an explanation as to the meaning of any particular document, would be required to check that the person under interrogation is indeed an appropriate person. The
Lord Haskel: My Lords, Amendments Nos. 83, 95, 98 and 107 in the name of the noble and learned Lord, Lord Fraser, would limit the persons who can be required to produce documents or explanations or statements in this way to officers or senior employees of an undertaking under investigation. We debated similar amendments in Committee at some length and I see nothing here which would cause us to change our view. In particular, as the amendments seem specifically aimed at removing junior employees from the scope of these provisions, I would recall the words of my noble friend Lord Simon. He said in Committee:
There is a further point about Clause 26. The "person" here may be a legal person; for example, a company that is asked to produce documents. Indeed, when an investigation is started using these powers the director will not know to whom to direct a request, and so I would expect him to require the company--a legal person--and not an individual to produce documents and perhaps also ask the company for explanations. In Clauses 27 and 28 the persons can only be individuals.
I would add no more other than the fact that we already have a defence in respect of failing to produce in Clause 41 and are bringing forward further amendments to that clause dealing with offences to ensure that persons who are genuinely unable to give such explanations will not be guilty of an offence.
Amendment No. 89 seems to be aimed at adding a form of safeguard when explanations of documents are being sought under Clause 26. The director would be required to consult the undertaking as to the role of the employee or officer in the matter under investigation and the appropriateness of requiring them to provide an explanation. The object appears to be to give the undertaking or person being investigated an element of involvement and influence in respect of the persons against whom the director is to exercise his powers.
Lord Fraser of Carmyllie: My Lords, I am not much inclined to rely on the judgment of the director. However, the noble Lord might be encouraged to know that I am prepared to rely on the very useful comment that he slipped into the middle of what he said, namely that he may bring forward amendments to Clause 41 because that is what is at the centre of our concerns. It is not that the director should not be able to investigate but that junior people who do not really know what is going on may find themselves open to a set of criminal sanctions. That could be extremely serious for young men and women, junior in a company, who have no intention of being obstructive in any fashion but who do not understand what is going on. That is the clear interrelationship between the two provisions that we wish to explore and clarify.
It would be extremely helpful if we were advised at the earliest possible opportunity of what the noble Lord proposes to do in relation to Clause 41 because that would not only potentially affect our assessment or judgment on amendments to this clause, but also to Clauses 27 to 30. With that lure I shall withdraw the amendment. This may be an appropriate time for the noble Lord to reflect on what he is going to write to me about Clause 41. I beg leave to withdraw the amendment.
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