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Lord Filkin: I thank the noble Baroness for drawing my attention to my omission on that point. Unfortunately, however, I also ask the Committee to reject Amendment No. 81. Clause 14(5) allows a duly authorised officer entering premises on the authority of a search warrant in connection with the enforcement of the Bill to be accompanied, as the noble Baroness rightly points out, by such persons as he considers necessary. That could mean a trading enforcement officer or, in the rare cases where violence was feared, a police officer.
This subsection follows other similar legislation, such as Section 33 of the Consumer Protection Act 1987 and Section 32(4) of the Food Safety Act 1990. I do not believe that in practice the absence of the word "authorised" in this legislation has caused problems. Therefore, I do not agree with the implication that enforcement officers, who are professional public servants, may be inclined to take inappropriate people along with them in the course of their duties. For that reason, I do not believe that we need to be concerned in the way that has been suggested.
Lord Clement-Jones: I do not propose to add a great deal to the Minister's very full reply on this subject. The Bill stands on its own. In the enforcement section, it deliberately tries to take a balanced view as to what powers are necessary and how they should be exercised. In one case, it is clear that it is on all fours with the Consumer Protection Act; in another case, it is not necessarily on all fours with that Act. No Bill will necessarily follow slavishly a previous Act; it depends on the circumstances. The Minister said that he will look a little closer at the comparison with the CPA of the reasonableness insertion. I have no doubt that that would also apply if there were other comparison points in the enforcement powers. I believe that that is a fair offer.
In the meantime, I do not believe that we can but be reassured by what the Minister had to say in his very full reply about the way in which enforcement officers exercise such powers. They are already under a duty to act reasonably and they have a very strong professional body which ensures that they act professionally and exchange information in a professional fashion. Therefore, I believe that, without evidence to the contrary, the provisions in this clause are currently fairly adequate. No doubt the Minister will return to us if he believes that there is a comparison with the Consumer Protection Act which should perhaps be closer in terms of making "reasonableness" explicit.
Lord Monson: I am grateful for the support that has been given to these amendments, albeit slightly qualified in the case of the noble Baroness, Lady Noakes. In the light of the intervention of the noble Lord, Lord Skelmersdale, from which I inferred that
the requirement of reasonableness has, indeed, been enshrined in the Consumer Protection Act, I am slightly saddened by the reply given by the noble Lord, Lord Filkin. If enforcement officials are de facto obliged to behave reasonably, why not dot the "i"s and cross the "t"s by stating that on the face of the Bill?
Lord Filkin: For two reasons. First, generally we have confidence in the wisdom and care with which trading standards officers operate; and, secondly, because it is otiose to do so.
Lord Monson: That may be. I take on board the fact that the Government will look at the Consumer Protection Act between now and the next stage. Certainly, as the noble Lord, Lord Clement-Jones, has just said, it is extremely helpful to have the comments of the noble Lord, Lord Filkin, on record. That may be helpful during the proceedings at a future date. I have no idea whether or not between now and the next stage the Government will try to bring matters into line with the Consumer Protection Act, and I have no idea what my noble friend Lord Palmer will wish to do on Report. However, for the time being, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Jay of Paddington moved Amendment No. 73:
- Page 7, line 23, at beginning insert "where he considers it necessary for that purpose,".
The noble Baroness said: This group of amendments, to which my name is attached, takes forward the discussion that we had on the previous group about more effective enforcement of the provisions in the Bill. I hope that they will perhaps find more favour with the noble Lord, Lord Clement-Jones, and with the Government. They are very straightforward and are designed simply to assist the trading standards officers who may make an investigation.
Specifically, the power in Clause 14(1)(c) to take possession of books, documents, and so on, can, as the Bill is drafted at present, be exercised only where the item has been produced in accordance with the requirement mentioned at the beginning of the paragraph. Clearly that will not matter in circumstances where an officer has perhaps been invited, or at least allowed, on to the premises without a search warrant. Presumably in those circumstances the occupier is at least collaborating with the investigation, if not necessarily welcoming it.
However, we believe that there may be a potential problem with an officer who is on the premises by virtue of a search warrant or who could, indeed, be on premises which were not at that moment occupied and who may need power to investigate articles or perhaps, as was suggested in the discussion on the previous group of amendments, seize articles in the last resort without having first required their production, as the Bill currently states. If, for example, the premises were
unoccupied, it would be difficult for those products to be voluntarily produced so that the officer could take possession of them.As I said, these amendments are extremely straightforward. My noble friend Lord Faulkner and I tabled these amendments. We hope usefully to close a potential loophole. I am grateful to the noble Earl, Lord Erroll, for the support that he gave before I even spoke to these amendments. I hope that they will be welcomed equally by the noble Lord, Lord Clement-Jones, and, indeed, by the Government.
Lord Filkin: I am very grateful to my noble friends Lady Jay and Lord Faulkner for these amendments, which seem to us to be helpful and necessary. Therefore, the Government support them. In short, for the reasons given by my noble friend and without repeating what she said, we consider them to be necessary in exactly the circumstances that she instanced. Therefore, we very much wish to support them and to see them incorporated into the Bill.
The Earl of Erroll: The reason I like the amendment is that it separates the production from the retention. I have not read far enough forward, but I wonder whether Amendment No. 78, which I have not read properly, should contain provision for appeal. If one's documents have been removed, it may be difficult to continue one's business. Perhaps that could be looked at more closely. Otherwise, in general, I believe that separating the retention from the production provision is a good idea. I did not mean to be heavy-handed about trading standards officers, for whom I have great respect and about whom I have heard only good. I referred in a more general sense to enforcement. One occasionally hears stories about other agencies and one never knows. Perhaps I am being over-cautious. I would hate it to be thought that I have ever heard anything bad about trading standards officers.
Lord Naseby: I do not rise to support the amendment but I shall not speak against it either. I rise simply to point out to the Committee that if the amendment were to find favour, it would strengthen the case for an appeal mechanism.
Lord Clement-Jones: I am not sure that I follow the logic of that. I shall ponder it when I read Hansard on Monday. The amendment clearly closes a valuable loophole. I am delighted that the noble Earl, Lord Erroll, took the opportunity to ensure that the trading standards officers would not take offence at anything he said in the course of the debate. I do not know whether he has interests in ensuring that he keeps good relations with them, but perhaps I may say that that was a neat piece of backtracking. Obviously, in so far as the amendment closes a loophole, I welcome it.
On Question, amendment agreed to.
Baroness Jay of Paddington moved Amendment No. 74:
- Page 7, line 24, after second "it," insert "and"
On Question, amendment agreed to.
The Deputy Chairman of Committees (Viscount Simon): Before calling Amendment No. 75, I must inform the Committee that if that amendment is agreed to, I cannot call Amendments Nos. 76 and 77 standing in the names of the noble Lord, Lord Palmer, the noble Earl, Lord Howe, and the noble Baroness, Lady Noakes.
Baroness Jay of Paddington moved Amendment No. 75:
- Page 7, line 25, leave out from first "it" to end of line 26.
On Question, amendment agreed to.
Baroness Jay of Paddington moved Amendment No. 78:
- Page 7, line 26, at end insert—
On Question, amendment agreed to.
[Amendments Nos. 79 to 82 not moved.]
"(ca) to take possession of any book, document, data, record (in whatever form it is held) or product which is on the premises and retain it for as long as he considers necessary for that purpose;"
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