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Lord Kingsland: My Lords, I am most grateful to the noble Lord for that piece of information. However, on reflection, he ought to accept that that reinforces the point that I made to the Minister. If that is the practice in that field, why should it not also be the practice in the field of competition law? If the practice has been continued for so long, is it not time that it was enshrined in our own statute law? I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Kingsland moved Amendment No. 104D:

Page 14, line 41, leave out ("such force as") and insert ("no more force than").

The noble Lord said: My Lords, this amendment is as much about constitutional tone as substance. It may be that the net effect of the expression,

is no more severe than the net effect of the expression, "no more force than is necessary". However, in my submission the expression that Her Majesty's Government have chosen to use is foreign to our constitutional tradition. It smacks of an autocratic rather than a constitutional authority. My amendment is not intended to alter the substance of the clause but merely the way in which the powers of the director are expressed. In those circumstances, I should be much obliged if the Minister would reconsider his decision not to move on this matter. I beg to move.

Lord Elton: My Lords, can the Minister confirm that this subsection refers only to the use of force for the purpose of entering premises and confers no right to use force once the premises have been entered? Perhaps he can tell us what will happen if, having broken down the front-door, those entering the premises find a series of other doors, behind one of which is the evidence they are looking for, or if someone within seeks to oppose their progress down the corridor?

Lord Simon of Highbury: My Lords, perhaps I may speak first to the amendment and then see whether I can find the wit to tackle the many doors along the corridor. As I said to the noble Lord, Lord Kingsland, in Committee, we entirely agree with the principle that, on those rare occasions when force is used to enter premises, no one should be authorised to use more force than he reasonably needs to use in order to do so. En passant, I believe that that covers the point about force being used to enter the premises. As I went on to say, that is the effect of the Bill as drafted. While I understand the concern that motivates the noble Lord's amendment, I do not believe that it would change the effect of the Bill. The officer entering the premises will not be entitled to break down the door if those

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inside are prepared to open it for him. Such force as is reasonably necessary is what is needed to gain access and no more.

I agreed to think carefully about the drafting, the tonal question, which I believe the noble Lord, Lord Kingsland, raised again. I said:

    "I shall think very hard about this, because if this is the right language to use it would be inappropriate for me, as the common man, to question the difference between the two alternatives".--[Official Report, 17/11/97; col. 408.]

As part of my reflections, we searched the statute book. This revealed 62 cases in English law of the words "such force as is reasonably necessary" and none of the words "no more force than is reasonably necessary". On that basis, I guess the vote is on our side in terms of tone and even more so in terms of research.

In reply to the subsidiary question, I confirm that it is only force used for entering which is referred to, as I indicated half-way through the first part of my answer, and that every subsequent door, if closed, could be broken down to enter the premises. Force would not be used against persons.

Lord Kingsland: My Lords, I thank the Minister for his reply. I am surprised by its substance but delighted to hear that, in moving my amendment, I was suggesting an improvement in our constitution, which I had hitherto always thought perfect. I believe that the additional question addressed to the Minister by my noble friend Lord Elton with regard to force against persons was not addressed in his reply.

Lord Simon of Highbury: My Lords, I did say that there would be no force used against persons, only against the subsequent doors in the corridor if they were closed.

Lord Elton: My Lords, may I ask where it is provided that the convention is that one can break down a door but not break a person's nose in the process? I realise that the noble Lord will probably wish to reply to this question after the debate by some other means.

Lord Simon of Highbury: My Lords, perhaps I may take advice on that point and respond at greater leisure. I suppose it depends how close one stands to the door. But that may not be the appropriate answer.

Lord Kingsland: My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 104E not moved.]

Lord Simon of Highbury moved Amendment No. 105:

Page 14, line 43, leave out ("possession of") and insert ("copies of, or extracts from,").

The noble Lord said: My Lords, I beg to move Amendment No. 105 and speak to Amendments Nos. 106, 108, 111A and 112. We listened carefully to the concern expressed in Committee by the noble Lords,

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Lord Kingsland and Lord Ezra, that the taking of original documents could be extremely inconvenient for a company which is the subject of an investigation. We undertook to reflect upon the points made with a view to making it clear that the taking of originals should be a last resort.

I am grateful to the noble Lords for raising this issue. I am clear that powers of seizure are necessary as a last resort to deal with serious cases of obstruction. It may not always be possible to copy documents. Seizure is a serious matter and it is right to ensure that there are appropriate safeguards in place. Having reflected on the debate in Committee, I agree that there is a case for strengthening the safeguards.

Amendment No. 106 limits the powers of seizure and confines them to circumstances where seizure is necessary to prevent them being destroyed or interfered with or where it is not reasonably practical to take copies of them on the premises concerned. Amendment No. 105 secures the reordering suggested by the noble Lord, Lord Kingsland, putting the taking of copies first, further emphasising that seizure is a last resort. Amendment No. 108 is a consequential amendment. I beg to move.

Lord Ezra: My Lords, I wish to speak to Amendment No. 112, which is grouped with Amendment No. 105. The point of the amendment is to ensure that, where original documents have been seized--which can only be for a period of three months--the enterprises concerned can have access to them, if need be, during that period. It seems to me that that is a reasonable additional safeguard.

Lord Fraser of Carmyllie: My Lords, the noble Lord has spoken to Amendment No. 112, to which I also have my name. We welcome the amendments that the Government have tabled, Amendments Nos. 105 and 106. Having regard to Amendment No. 106 and the proper emphasis which the Government now accord to the desirability of taking copies rather than the original documents, if that can be achieved, it seems to me that what is proposed in Amendment No. 112 ties in with that approach.

As I understand the position, the investigating officer will go in and will be entitled to take copies of documents. That is what he must address his mind to first: "Can I achieve my purposes by taking copies?". If that is the case, he does so. If he cannot do that, he takes the originals. If the documents seized were not capable of being copied, it may be difficult for the individual or the undertaking if there is no access to the documents while they are under investigation.

If the Government recognise the desirability and good sense of people being able to retain the originals and that the originals should be taken away only if they cannot be dealt with in any other fashion, perhaps the amendment is not the most appropriate way to achieve the Government's aim. In such circumstances it would be appropriate for there to be at least access to the documents. No one is asking for their immediate return, just that there should be some access to them while the

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investigation is taking place. With those few words, and a request for further explanation from the Government, I support the noble Lord, Lord Ezra.

Lord Haskel: My Lords, noble Lords put their finger on an important point; that is, that it would be wrong for the Bill to try to prescribe in great detail what should happen in every conceivable circumstance. The Government have already come forward with amendments to the Bill to ensure that seizure is the last resort. But we must allow reasonable flexibility in the arrangements provided in the Bill.

If documents have been taken in the limited circumstances in which they are now permitted, we should leave it to the director to behave reasonably and to allow access, where that is necessary, to the company concerned. I am confident that the director will behave reasonably in this and other important areas. I am sure that that confidence is shared by the noble Lord, Lord Ezra.

Were we to start from the assumption that the director would always try to behave unreasonably and make provision in the Bill to prevent it, we would end up with an unworkable Bill and an unworkable system. I therefore invite the noble Lord to put his trust in the good sense of the director.

On Question, amendment agreed to.

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