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Baroness Jay of Paddington moved Amendment No. 83:
- Page 8, line 16, leave out "(1)(c)" and insert "(1)(ca)"
On Question, amendment agreed to.
1.45 p.m.
Baroness Noakes moved Amendment No. 84:
- Page 8, line 43, at end insert—
The noble Baroness said: In moving Amendment No. 84 I shall speak also to Amendments Nos. 85 and 86. This group of amendments has a theme of providing protection to those against whom the powers of entry, and in particular access to and retention of goods, are used. The amendments do not seek to deny the powers, but seek to provide some counterbalances where things go wrong.
I stress that these are not unusual protections but ordinary measures similar to those found in other legislation. They are designed to deal with what one hopes will be the rare event of the Clause 14 powers being used inappropriately. The powers are particularly important, given that the earlier amendments, relating in particular to reasonableness, seemed not to catch the eye of the noble Lord, Lord Clement-Jones.
Amendment No. 84 inserts a new subsection (13) to Clause 14. It is designed to ensure that those who enter premises using the Clause 14 powers do not abuse any information about trade secrets that they acquire. Subsection (13) makes it an offence to disclose that information otherwise than in the performance of the officer's duty. I have mentioned that I do not expect the subsection to be needed often, but it is a useful
I turn to Amendment No. 85, which seeks to introduce a new clause after Clause 15 to deal with the situation where goods have been retained by an authorised officer under the Clause 14 powers. As the Bill stands, without amendment, the officer can take possession of and retain books, documents and, importantly, products and can then keep them for as long as he considers necessary for the exercise of his functions under the Bill.
So, what happens if the officer arrives, enters premises, takes away goods but then does nothing? There is no specific remedy for that in the Bill. The amendment creates in subsection (1) the power for the owner of goods, or someone else with an interest in the goods, to apply for an order for their return. Under subsection (2) the application has to be to a magistrates' court or, in Scotland, to a sheriff. Committee Members will see that what is intended is a low-level and accessible court.
Subsection (3) restricts the remedy to cases where proceedings have not been brought and more than six months have elapsed since the goods were seized. That is a remedy which is modestly framed and does not result in every seizure being followed immediately by legal challenge. Finally, subsection (4) contains rights of appeal from the magistrates' or sheriff's decision.
I lay particular emphasis on the modesty of the provision. If a business has had its documents or records seized, that could disrupt the operational efficiency of the business. If saleable products have been taken—the noble Lord, Lord Filkin, said earlier that that is not likely but it is possible under the Act—the financial consequences could be significant. The first priority for people is normally to get the goods back. I hope that the noble Lord, Lord Clement-Jones, and the Minister can see the force of that. I hope that they will not take the view that anybody even suspected of a breach of the tobacco advertising ban being introduced by the Bill should become a person without rights to his own goods for as long as the authorities decide. I know that many noble Lords on other Benches have scant sympathy for tobacco companies in particular and, indeed, big businesses generally. However, I remind noble Lords that the Bill is widely drawn. It can drag many smaller businesses within its net: those in printing; newspaper distribution, advertising; and specialist tobacconists, to name the more obvious.
Amendment No. 86, the last in this group of three amendments, deals with a more significant remedy for those who have been subjected to the powers of seizure and detention under Clause 14 but are innocent of the crimes created in the Bill. The new clause after Clause 15 would enable the owner of or other person with an interest in the seized goods to claim compensation from the enforcement authority.
Subsection (1)(b) would not allow compensation to be paid if the power to retain the goods had been exercised due to the owner's default or neglect. So,
As with the two previous amendments, I hope that the noble Lord, Lord Clement-Jones, and the Minister can see the equity involved in the amendments and will be prepared to accept the principle of the amendments of modest remedies and protections for those potentially unfairly affected by the Bill. I beg to move.
Lord Skelmersdale: If any part of the Bill is objected to in the courts by virtue of an appeal on the subject of human rights, I believe that it will be this part. My noble friend Lady Noakes is right. Without provisions for compensation and appeal in Amendments Nos. 85 and 86, Clause 14, as currently drafted, amounts to a rather unreasonable and unjust measure. I cannot find any justification for it at all, especially in view of the general range and seriousness of offences under the Bill.
So far as concerns Amendment No. 84, I feel that my noble friend, at the very least, has gone rather over the top in terms of drafting. I suspect that the Minister will tell us that her last phrase referring to the penalty,
Like my noble friend, I suspect that, although the provision appears in the Food Safety Act 1990, it is unlikely to have any relevant application to this particular Bill. However, I would suggest rather gently that that is no good reason for leaving it out.
The Earl of Erroll: I should have thought that the new clause is eminently sensible and is logically a very good part of checks and balances. If all one's accounting records and such documents have been taken and retained, presumably one would eventually have problems with the VAT man. One could end up in the courts being locked up for other offences as well. So one must have some kind of appeal.
Lord Naseby: I wholeheartedly support my noble friend on the Front Bench. It seems to me that while perhaps 99 per cent of trading standards officers and others involved are entirely reliable, life being what it is, there will always be the odd person who is not as reliable. There may be instances—it may only be one case in 10 years, it does not matter—where either there should be compensation or an appeal. I cannot think that any government would want an Act on the statute book where those two provisions are denied to UK citizens. Therefore, I wholeheartedly support the amendment.
Lord Filkin: This is essentially about the proportionality and the likely level of risk that might
Amendment No. 84 adds a new subsection to Clause 13 which creates a new criminal offence for trading standards officers or anyone accompanying them in connection with investigations under the Bill if they divulged any information constituting a trade secret.
I do not think that there is a need, however, to add to the weight of offences on the statute book by creating a new offence applicable to TSOs in the course of enforcing the provisions of this Bill.
An enforcement officer goes on to business premises and, for example, sees something which constitutes a tobacco advertisement or is connected with a possible offence under the Act. There will be no trade secret in a leaflet offering a free cigarette lighter in return for packet tops or a branded open and closed sign which a newsagent has omitted to remove. Even if the information is something more sensitive, such as a computer programme, the question arises: what is a trade secret in these circumstances?
The penal provision is not necessary and we have received no representations from business interests that it is required. As with Amendment No. 5 where the option of civil action is available, if enforcement officers or a person accompanying them did divulge a trade secret, they could be subject to civil action, which, as the noble Baroness will know, carries a lower burden of proof and the potential for substantial damages, if so found. So in practice the civil courts already provide an effective remedy.
Under Amendment No. 85, this new clause gives any person whose goods are detained by an enforcement officer under Section 14(1)(c) of the Act the right to apply to a court to have them returned. It repeats the wording of Section 33 of the Consumer Protection Act.
Clause 14(1)(c) of the Bill gives enforcement officers the power to take possession of any book, document, data, record or product and retain it as long as is considered necessary for the purpose.
Clause 14 follows closely the equivalent provisions in the draft regulations which were made in connection with the European Directive 98/43/EC. We consulted widely on these regulations and received no representations to the effect that a provision for appeal similar to this new clause may be necessary.
I do not believe that it is necessary to reproduce the provisions of Section 33 of the Consumer Protection Act here. In cases under that Act the powers are more wide-reaching, reflecting the gravity of the subject matter—for example, unsafe goods—and enforcement officers are likely to have to seize whole consignments of goods which they consider to be unsafe. Under this Bill, which is about tobacco promotion not unsafe goods, there is no need for such measures. Any taking of possessions is likely to involve at most the taking away of items of small value such as a sample copy of a
Under Amendment No. 86, the new clause gives a right to compensation to anyone whose goods are detained in connection with the provisions of the Bill where there is no culpable behaviour found on his part. Again the new clause follows closely the wording of Section 34 of the Consumer Protection Act.
Clause 14(1)(c) of the Bill gives enforcement officers the power to take possession of any book, document, data, record or product and retain it for as long as they consider necessary for the purpose.
Clause 14 follows closely the equivalent provisions in the draft regulations which were made in connection with the European Directive 98/43/EC. Again we consulted widely on these regulations and received no representations to the effect that a provision for compensation similar to this new clause might be necessary.
I do not believe that it is necessary to reproduce the provisions of Section 34 of the Consumer Protection Act here. Again, in cases under that Act the powers are more wide-reaching, reflecting the gravity of the subject matter—for example, unsafe goods—and enforcement officers are likely to have to seize whole consignments of goods which they consider to be unsafe. Under the Bill, which is about tobacco promotion not unsafe goods, the Government believe that there is no need for such measures. Any taking of possessions is likely to involve at most the taking away of a sample copy of a magazine or a computer disk for evidential purposes and, in any case, the items may only be retained as long as is necessary for such purposes.
I very much hope—perhaps more in optimism than in expectation—that I have convinced noble Lords that there is no need for these amendments. In any event, one expects that ordinary common sense will apply. In the case cited by the noble Earl, Lord Erroll, of a company which believed that its data necessary for completing its VAT returns had been seized, one would expect that it would make immediate representation to the relevant local authority, which would be negligent in not providing at least copies of such documents, so that it could comply with its other statutory obligations in such circumstances.
For these reasons, while understanding the spirit of the amendments, the Government do not believe that they are necessary.
"(13) If a person who enters any premises by virtue of this section discloses to any person information obtained on the premises with regard to any trade secret, he is, unless the disclosure is made in the performance of his duty, guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale."
"a fine not exceeding level 5 on the standard scale",
actually belongs in Clause 16 rather than Clause 14. That clause deals with all the other fines and penalties under the Bill.
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