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Lord Kingsland: I know that the Minister will recall those cases from our exchanges on the Financial Services and Markets Bill.

Lord McIntosh of Haringey: Indeed.

I am grateful to both noble Lords, particularly to the noble Lord, Lord Kingsland, for the wide-ranging way in which he has argued the case. He has gone forward quite a way into Part 6. I hope the Committee will forgive me if I answer not only the specific issues

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raised by the amendments, but also some of the more general points. I cannot deal with all the points that will arise when we consider later amendments, but perhaps if I deal with some of them I can remove the need for extensive stand-part debates on many of the clauses in Part 6.

It will be agreed that Amendment No. 185 is one alternative, and Amendments Nos. 186 and 187 would achieve the same effect with different wording. We are talking about the same thing. I shall explain the working arrangements between the Office of Fair Trading and the Serious Fraud Office in relation to investigation and prosecution. The SFO and the OFT will work together on the investigation and decision to prosecute and the SFO will undertake the prosecution in England, Wales and Northern Ireland—I will qualify that later—while the Lord Advocate will prosecute in Scotland. That links SFO's expertise in criminal prosecution with the OFT's expertise in competition investigations. It has extensive experience, although admittedly in the civil rather than criminal sphere. We do not expect a large number of prosecutions and it will be more effective to locate them in an organisation undertaking similar work.

The OFT will undertake the initial investigation using powers broadly modelled on the SFO powers in the Criminal Justice Act 1987. The OFT will inform the SFO as soon as a case appears likely to lead to a criminal prosecution. At that point, the decision may be taken to hand over the case to the SFO to prosecute or the OFT may remain involved for a period—called extended vetting—before a decision is taken. Once the SFO has taken over a case, a SFO controller will oversee a joint team to move it forward.

The SFO has the necessary resources and experience for such criminal prosecutions and has prosecuted other white collar crimes such as insider dealing for many years. The SFO has a successful conviction rate of 87 per cent in the past five years.

The OFT is included in the Bill as an additional named prosecutor but it is neither expected nor resourced to prosecute initially. It has only been included so that if circumstances justify it in future, the OFT will be able to perform a prosecution role. That might arise if the number of cartel prosecutions created a conflict with other SFO priorities. If that is a point of concern for the noble Lord, Lord Kingsland, I will be happy to discuss the matter with him before Report stage.

The OFT will investigate using an analogy with existing SFO investigatory powers under the 1987 Act but—except in unusual circumstances—the OFT will not prosecute into the future.

The noble Lord mentioned the civil and criminal interface, which cannot be avoided because it is a critical part of cartels. We are moving on from existing civil law under the Competition Act 1998, which targets the undertaking—whereas the criminal offence in the Bill targets the individual. The OFT is being granted separate powers for conducting criminal and civil proceedings. The civil powers under the 1998 Act focus on infringements by undertakings. The Bill's cartel provisions deal with criminal actions by

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individuals. A single cartel could involve actions in both civil and criminal courts. Protections are needed to ensure that information gathered under one regime is not used wrongly for another regime.

The OFT will collect evidence for a new offence to much more demanding standards, to ensure that it is admissible in a criminal trial. OFT investigators will abide by the code of conduct for the investigation of criminal offences specified in PACE. Suspects will be cautioned before being interviewed by OFT officers investigating the criminal offence.

Clause 193, which we have not yet reached, ensures that statements compelled under the Competition Act 1998 powers—it is important for me to say this to the noble Lord, Lord Kingsland, because I know that it is a matter about which he is concerned—may not be used in criminal proceedings except in limited circumstances. We can debate those circumstances.

Therefore, in conducting civil and criminal investigations, the OFT will be in a similar position to that of Customs and Excise and the Inland Revenue, to which the noble Lord referred, each of which also successfully carries out parallel civil and criminal investigations.

I have gone beyond the scope of the amendments, as did the noble Lord, because I believe it is important that we set the tone for our debate. I am sorry that we are doing so in circumstances where we cannot complete debate on Part 6 tonight. But I hope that this

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debate will be printed and that it will be possible for us to have a rational discussion on Monday, taking into account what is being said here.

Implicitly, the noble Lord, Lord Kingsland, is talking about the Saunders judgment on privilege and self-incrimination. He has tabled later amendments to that effect. The OFT based its approach to privilege against self-incrimination on the Saunders judgment. The OFT can require production of any document if it existed prior to the start of the investigation. But it cannot use the answer to any questions that are indirectly or directly incriminating as evidence against the persons questioned.

I am sorry to have spoken for longer than one would normally do, but it is important that we set these amendments in context. I hope that the noble Lord, Lord Sharman, will not press his amendment.

Lord Sharman: I am extremely grateful for the very full response given by the Minister. I particularly appreciate his explanation as to how the OFT and the SFO will work together on prosecutions. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 186 to 187 not moved.]

Lord Grocott: I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

        House adjourned at twenty-eight minutes past midnight.

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Official Report of the Grand Committee on the

Adoption and Children Bill

Thursday, 18th July 2002.

The Committee met at four of the clock.

[The Deputy Chairman of Committees (Lord Burnham) in the Chair.]

Clause 112 [Special guardianship]:

Lord Clement-Jones moved Amendment No. 107A:


    Page 61, line 2, at end insert—


"( ) Where the court is considering whether to make a special guardianship order and no children's guardian is already appointed by the court for the child who is the subject of the application, the court shall appoint a children's guardian for the child concerned unless it is satisfied that it is not necessary to do so in order to safeguard the child's interests."

The noble Lord said: We come to Clause 112. Under the proposed new Sections 14A to 14G of the Children Act, which are imported by Clause 112, the court will have the power to make a special guardianship order in both public law and private law cases. This order will significantly affect parents' exercise of their parental responsibility as it allows a special guardian to exercise parental responsibility in relation to the child to the exclusion of any parent. A good example of this is the new Section 14C(1)(b). The consequences of the order are therefore likely to impact directly on the child's and the parents' convention rights under Article 8 of the European convention.

Under Clause 112 the local authority is required to submit a report to the court. However, this may not provide adequate independent information to assist the court to decide about the suitability of the order and the level and kind of services the child and carer will need.

There are two principal reasons for this. The local authority may already have formed a fixed view about the family's plan for the child, particularly where the family has a history of involvement with social services; and it may have a view about the need for support services which is, at least, partially determined by its own budgetary considerations.

To ensure that the child's interests are properly safeguarded, we believe that the court must have the power to seek independent advice and information about how best to meet the child's needs. Hence the proposed presumption that, unless the court is satisfied that it is not necessary, a guardian should be appointed, particularly in cases where there is disagreement between the parent and potential special guardian. I beg to move.

Earl Howe: I rise briefly to support the amendment and to endorse all that the noble Lord said. We all agree that the over-arching principle of this Bill should

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be the welfare of the child. That principle should guide us as we consider Clause 112 and the provisions it contains for special guardianship orders. When deciding what is in a child's best interests, the key issue for the court is to be sure that it has objective and unbiased information in front of it on which to base its decision. That may sometimes not be as easy or straightforward as it sounds.

As the noble Lord, Lord Clement-Jones said, all that the court will normally have is a report from the local authority. The local authority's involvement with the child and with the family may have a long history attached to it. In one sense, that should give us reassurance because social services will be speaking from experience and knowledge of the individuals involved. However, the other side of the coin is that they will not necessarily approach the issue of special guardianship in an even-handed way because, in many cases, they will have been working hard to try to keep the child with his or her birth family and they will be heavily influenced by the views of the birth parents. The birth parents may well have strong feelings about having their parental rights curtailed as a result of a special guardianship order.

In one important respect the local authority is also inherently compromised—the noble Lord alluded to this— because, when it comes to the need for support services, it may find its views coloured by whether or not such services are financially affordable.

Ideally, the court should be able to ask for an independent opinion of what the child needs and then come to a view, based on this opinion and the available facts, as to what course of action is in the child's best interests. The presumption ought to be in favour of appointing a special guardian unless, as the amendment states, the court is satisfied that it is not necessary to do so in order to safeguard the child's interests.

Like the noble Lord, Lord Clement-Jones, I hope that the Minister will see the need for the court to have the wherewithal in front of it to enable it to come to an informed and balanced view as to what is in the interests of the child.


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