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Lord Kingsland: My Lords, before the Minister sits down, having given that no doubt well-intentioned but extremely unsatisfactory reply, perhaps I can return to the point that my noble and learned friend and I sought to make in our interventions under the amendment.
If the Minister wishes to give a wide interpretation to the second prohibition, how does he see the relationship between that prohibition and the scale monopoly powers being exercised by the other branch of the competition commission? Industry is entitled to know what it will have to face in terms of regulation. It flows from the Minister's unwillingness to restrict the second prohibition in the way that this amendment seeks to do, that he ought now to tell the House or make clear soon after, exactly how he sees the relationship between the exercise of this power by the Director-General of Fair Trading and the exercise of the scale monopoly power by that part of the competition commission which will be responsible for exercising it.
Lord Simon of Highbury: My Lords, as I tried to make clear in my previous answer, the application of the scale monopoly powers will be put into place only if an abuse has been found under the second prohibition. It will therefore be looked at as a remedial structural issue. The overriding issue will be whether the abuse has taken place. I shall reflect upon the question and if there is a further answer beyond that, I shall let the noble Lord know.
Lord Fraser of Carmyllie: My Lords, my noble friend Lord Kingsland made an extremely telling point. However, in view of what the Minister said, I do not propose to press any of these amendments, though they remain matters of concern.
As I said earlier, the amendments relate to parts of the Bill that seem to us to point to a lack of balance between ensuring that there is proper regulation of competition within the United Kingdom and providing certainty for business within the United Kingdom. It is
an unsatisfactory basis on which to leave this most important of clauses in the Bill, but I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
[Amendments Nos. 11 to 14 not moved.]
6.15 p.m.
Clause 27 [Powers when conducting investigations]:
Lord Fraser of Carmyllie moved Amendment No. 15:
The noble and learned Lord said: My Lords, at Report stage I acknowledged that the Government had been extremely helpful in drawing together a number of amendments which seemed to us to clarify the circumstances in which extensive powers of investigation would be permitted to the director. In many respects the major concerns that we had in relation to the powers of investigation--entering premises, asking questions of individuals and so forth--were allayed.
However, Amendments Nos. 15, 17, 18, 20 and 21 have a single common theme running through them. That is, in the circumstances where such powers are to be exercised, they are likely to be exercised in circumstances where those who are confronted with someone seeking to enter the premises to take documents away and requiring them to answer questions are likely to be people who are not familiar with the law. It is extremely unlikely that they come into that group of citizenry who have regularly, in the past, had contact with the police and know how they should answer or the extent to which they will be required to answer. In the main they will be perfectly law-abiding officers of companies who may have little or no idea what it is that is under investigation.
The common theme in all that is that if an individual has to respond to an exercise with powers under this part of the Bill--Chapter III--they should be given the opportunity to seek legal advice. That does not seem to me to be an excessive request, nor does it seem to me to be a proposal that, if the Government were prepared to accept it, would mean that the proper investigation that the director wished to undertake would in some way be impeded. In our view it would be a reasonable request to be made.
As the noble Lord will be aware, often in such circumstances, where an individual has the opportunity to take legal advice, far from there being difficulties caused in the furtherance of the investigation, once individuals understand what is required of them and once they appreciate what powers are vested in the investigating officer, there may be a greater willingness to co-operate and ensure that what is being sought is handed over.
I do not believe that, if these amendments or amendments along these lines were to be accepted, the powers of investigation which we all acknowledge must be there would be seriously damaged or restricted. I beg to move.
Lord Simon of Highbury: My Lords, this is an important area but I must express for the first time some disappointment that we are going to go over the ground again.
Amendments Nos. 15, 17, 18, 20 and 21 address the question of access to legal advice during investigations into suspected infringements of the prohibitions. We discussed this at length.
As noble Lords will be aware, I was grateful for their raising the point in previous discussions, particularly that notices should indicate the subject matter of an investigation and the nature of the offences created. The Bill has already been amended to deal with that. On access to legal advice, however, there is nothing I can usefully add to those discussions. My view remains that it is not appropriate to put this kind of provision on the face of the Bill.
I turn to the second part of Amendment No. 21. I am not absolutely clear why it was tabled. Amendments which the Government introduced at Report included the new Clause 30 dealing with matters supplementary to the entry of premises under a warrant. Subsection (3) makes specific provision for premises which are empty. Where that is the case, before the warrant is executed the investigator will have to take reasonable steps to inform the occupier that the premises are to be entered and afford him a reasonable opportunity to be present at the time.
Unless I have misunderstood the amendment, I hope that we have dealt with the key issues. We do not see the need for further amendment in this area, and therefore I urge the noble and learned Lord to withdraw these amendments.
Lord Fraser of Carmyllie: My Lords, I hope it will be apparent to the House from what I said in moving the first amendment that the issue of access to legal advice remains one which we consider to be important and to which we attach some significance. Having looked at Amendment No. 21 and what is said about Clause 30, I have little doubt that the Minister is correct on that. I must express my disappointment to the Minister that, even after this third attempt, it is proving to be so intransigent. But I recognise that I am not going to get anywhere with it this evening. I beg leave to withdraw.
Amendment, by leave, withdrawn.
Clause 28 [Power to enter premises without a warrant]:
Lord Haskel moved Amendment No. 16:
The noble Lord said: My Lords, I beg to move Amendment No. 16 and also speak to Amendments Nos. 19, 22, 23 and 30. These amendments correct a
On Question, amendment agreed to.
[Amendments Nos. 17 and 18 not moved.]
Clause 29 [Power to enter premises under a warrant]:
Lord Simon of Highbury moved Amendment No. 19:
On Question, amendment agreed to.
[Amendments Nos. 20 and 21 not moved.]
Lord Haskel moved Amendments Nos. 22 and 23:
On Question, amendments agreed to.
Clause 35: [Enforcement of directions]:
Lord Fraser of Carmyllie moved Amendment No. 24:
The noble and learned Lord said: My Lords, I recollect that this is a matter we have considered on a previous occasion but I shall return to it briefly. Clause 33 enables the director-general, or a regulator, to apply to the court for an order to enforce a direction to end an infringement of a Chapter I or Chapter II prohibition under Clauses 31 or 32 where the undertaking to which that direction is addressed has failed to comply with its terms, in addition to imposing a liability on undertakings to comply with such a court order or else face the risk of being in contempt. To meet the costs of the application for that order, Clause 35 also provides for the order and the liability of costs to be directed at the offices of the undertaking personally. We do not have any difficulty with the appreciation that the undertaking itself should suffer these pains and penalties but we still are concerned that the individual should suffer a liability for costs. I would be grateful if the noble Lord would reconsider this matter. I beg to move.
Page 14, line 17, at end insert--
("( ) The power conferred by subsection (6) shall only be exercised after the person is afforded reasonable time to seek legal advice before complying with any such requirement").
Page 15, leave out lines 4 and 5 and insert--
("(ii) if the document is produced, to provide an explanation of it;").
Page 15, line 14, leave out ("appropriate person") and insert ("Director").
Page 16, line 23, leave out ("(2)(b)") and insert ("(2)(c)").
Page 16, line 25, leave out subsection (8).
Page 18, line 15, leave out from ("default") to end of line 16.
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