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Lord Simon of Highbury moved Amendment No. 93:

Page 13, line 37, leave out from ("given") to end of line 38 and insert ("to the occupier of the premises a written notice which--
(a) gives at least two working days' notice of the intended entry;
(b) indicates the subject matter and purpose of the investigation; and
(c) indicates the nature of the offences created by sections 41 to 43.").

On Question, amendment agreed to.

4.45 p.m.

Lord Kingsland moved Amendment No. 93A:

Page 13, line 40, leave out ("a reasonable suspicion") and insert ("reasonable grounds for belief").

The noble Lord said: My Lords, I believe that the Minister's amendment meets my concern on this matter, if he agrees with me that a "reasonable suspicion" is to be interpreted as "reasonable grounds for belief"; in other words, the test is an objective test. I beg to move.

Lord Haskel: My Lords, we looked at the implications of the phrase "reasonable grounds to believe" as against "reasonable grounds to suspect" extensively in Committee, especially in the context of the basic trigger for the investigation powers in Clause 25 and in relation to the waiving of notice requirements where there is entry of premises without a warrant.

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The debate has caused us to look again very carefully at the provisions of the Bill. As a result, I have come to the conclusion that there is an unjustifiable anomaly in Clause 28 which should be corrected. Clause 28(1) of the Bill provides for the circumstances in which a warrant may be obtained for the entry and search of premises in the course of an investigation. Essentially these are as follows: first, where there may be documents on premises, which have been required to be produced but have not been produced; secondly, where there may be documents on premises which, if they were required to be produced, might be concealed, removed, tampered with or destroyed; and, thirdly, where there may be such documents on premises, production of which could have been required and an investigating officer has attempted to enter the premises but has been unable to do so. In my view, the appropriate test in each case should be one of "reasonable suspicion" that these matters are so.

The director general has made representations to us to ask that the test should be "reasonable suspicion". I am also satisfied that an investigation by the director general would be handicapped by leaving the Bill unchanged.

Amendment No. 104 is grouped with this amendment. It is a consequential amendment which conforms the language of Clause 28(1)(b) to that in paragraphs (a) and (c). I believe that the Bill should be corrected and, therefore, will wish to move that amendment at a later stage.

Having explained our view on the appropriate test to be applied in this particular limb of Clause 28(1), it will come as no surprise to the House to hear that we do not favour the consequences of the string of amendments which have been tabled by noble Lords with this amendment. We discussed this at length on Second Reading and in Committee and we believe that the reasons for applying the test of "belief" are compelling. I therefore ask noble Lords to withdraw their amendments.

Lord Kingsland: My Lords, on the assumption that I have understood the noble Lord correctly, I willingly beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Lord Kingsland moved Amendment No. 93B:

Page 14, line 2, after ("25(1)(b)") insert ("and the giving of notice in accordance with subsection (1) would be likely to result in that party or undertaking concealing, destroying or tampering with any document specified in a notice under section 26(2)").

The noble Lord said: My Lords, this amendment was moved by the Opposition in Committee. I have not noticed any reaction from Her Majesty's Government in the revised Bill for Report. In my submission, this is an important amendment because the exemption given by Clause 25(1)(a) and (b) for acting without a warrant is a large exemption and ought to be qualified in the way set out in the amendment. I beg to move.

Lord Simon of Highbury: My Lords, the right to make unannounced visits is an important weapon in the director general's armoury. His powers must be

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sufficient in the worst cases of covert cartels to enable him to obtain all documents relevant to his investigation into whether there has been an infringement of the prohibitions.

The proposed amendment would increase the threshold to be crossed before the director general has an unannounced right of entry. At present, under the Bill, if he has a reasonable suspicion that a prohibition has been infringed, he could make unannounced visits if the premises in question are occupied by an undertaking whose conduct he is investigating or if he has reasonable suspicion that this is so.

Amendment No. 93B would increase the risk that the giving of notice would enable an undertaking to prepare in advance for the director's investigation and make it more likely that relevant documents would be hidden, tampered with or destroyed. How could the director establish in advance that the giving of notice would be likely to have the result of the documents being tampered with or destroyed? How could he establish that without making an unannounced visit in the first place?

The practical result of the amendment will be to create a high hurdle before unannounced entry. It will be the same as that which exists under Clause 28 for obtaining a warrant. We believe that it is right to give the director the power to make surprise visits where the undertaking concerned is a suspected infringer. I therefore urge the noble Lord to withdraw his amendment because we are maintaining the same position, as he rightly observed, that we did when we discussed it at Committee stage.

Lord Kingsland: My Lords, I thank the Minister for his reply. However, I cannot resist expressing my disappointment that he has failed to move on the issue. The amendment covers precisely those circumstances that he fears. In my submission, it would not be difficult for the director to pass the test laid down by the amendment, if indeed he moved within the two day period. However, I do not propose to press the amendment. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Haskel moved Amendment No. 94:

Page 14, line 4, at end insert--
("(3A) In a case falling within subsection (3), the power of entry conferred by subsection (1) is to be exercised by the investigating officer on production of--
(a) evidence of his authorisation; and
(b) a document containing the information referred to in subsection (2)(b) and (c).").

The noble Lord said: My Lords, we spoke to this amendment when we debated Amendment No. 85. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 95 and 95A not moved.]

Lord Kingsland moved Amendment No. 95B:

Page 14, line 9, leave out ("relates to any matter relevant") and insert ("is necessary").

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The noble Lord said: My Lords, the amendment simply tightens up the criteria by leaving out,

    "relates to any matter relevant",

and inserting,

    "is necessary".

It is an amendment made in other parts of the Bill where we think that the discretion given to the director is unnecessarily wide. I beg to move.

Lord Simon of Highbury: My Lords, we may be indulging in a significant tightening and untightening of bolts. I seem to be doing most of the untightening.

We considered similar amendments in Committee. We took the clear view (at cols. 396 and 411 of Hansard 17th November) that seeking to impose the objective test that documents should be "necessary" to an investigation in order that they can be required to be produced, would serve to do no more than frustrate the investigation. We remain entirely of that view, and I hope in understanding our position noble Lords are able to withdraw the amendment.

Lord Kingsland: My Lords, the Minister will not be surprised to learn that I am also disappointed in that reply. However, I am rapidly becoming a realist in these matters. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Speaker (Lord Strabolgi): My Lords, if Amendment No. 95C is agreed to, I cannot call Amendments Nos. 96 and 96A.

[Amendments Nos. 95C to 97 not moved.]

Lord Kingsland had given notice of his intention to move Amendment No. 97A:

Page 14, line 12, at end insert--
("provided that the person is afforded sufficient time to seek legal advice before complying with any such requirement").

The noble Lord said: My Lords, this matter has already been dealt with by the Minister in another context. Having heard the noble Lord's reply in that context, we know what it will be in response to this amendment. In those circumstances, I shall not move the amendment.

[Amendment No.97A not moved.]

[Amendments Nos. 97B and 98 not moved.]

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