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Lord Kingsland: I am most grateful to the noble Lord for his response, on which I shall reflect. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9 p.m.
On Question, Whether Clause 186 shall stand part of the Bill?
Lord Hunt of Wirral: I turn to the Minister's comments on extradition. We well understand that in this regard we are talking primarily about the United States of America and that we therefore have to tread with a degree of caution because of the double effect about whatever we decide in relation to the Bill. As we extend criminality to cover an offence, a conspiracy to commit such an offence and an attempt to commit such an offence, under the doctrine of dual criminality, a request for extradition, once a country has criminal penalties for an activity, will apply, so far as a country's demands are concerned, where it has equivalent criminal penalties.
Will the Minister please confirm that there is no question of the extradition provisions in the clause applying retrospectively? I imagine that he will be able to confirm that. If so, it would be helpful if he could
identify exactly what he means when he says that it will not apply retrospectively. Does retrospection apply to a criminal conviction, for example, in the United States in absentia of a United Kingdom subject who is here or to the date of the alleged offence itself?Following the comments of my noble friend the shadow Lord Chancellor, if we are making criminal a conspiracy or an attempt, it will immediately follow that in the United States there could be an attempt to extradite for a similar category of offence, which goes much wider in the United States than it would here; I refer, for example, to some form of limitation of production. If there was an attempt to limit production, it would be held to be an attempt in the United States although it might not be in this country. As he seeks to balance those two conflicting points, it would be helpful if the Minister would give us some reassurance.
Lord McIntosh of Haringey: On the point of limiting production, limiting a production is already provided for in Clause 183(2)(c). The definition of a cartel is not at issue.
On the issue of retrospection, the answer is that the provisions are not retrospective; the arrangement is determined according to the date of the offence. An offence that was committed before the Act came into force would not be extraditable. I believe that those were the two points on which the noble Lord, Lord Hunt, sought reassurance.
Clause 187 [Investigation of offences under section 183]:
Lord Kingsland moved Amendment No. 190:
- Page 136, line 27, at end insert "insofar as relevant to the investigation of the offence under section 179 which it is suspected has been committed"
The noble Lord said: This amendment is self-evident. It seeks to focus the power in Clause 187 to the specific circumstances of the alleged offence. In my submission, it does not undermine the clause's intention; it simply makes sure that it has a proper purpose. I beg to move.
Lord Borrie: Is the amendment correct in referring to "section 179" or should it refer to "section 183"?
Lord McIntosh of Haringey: If I can answer for the noble Lord, Lord Kingsland, the amendment is meant to refer to Section 183. The version that went through the Commons referred to "section 179". I make no point of that.
The point I do make is that the noble Lord, Lord Kingsland, is entirely right. The arrangement must be restricted in the way in which he suggests, and it is. Clause 187(2) states that the criminal investigatory powers,
- "are exercisable, but only for the purposes of an investigation under subsection (1)".
- "The OFT may conduct an investigation if there are reasonable grounds for suspecting that an offence under section 183 has been committed".
Lord Kingsland: I am most grateful to the noble Lord. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 187 shall stand part of the Bill?
Lord Kingsland: Again, I shall be very brief. I am sure that the noble Lord will recall debate on the last amendment of the second Committee day, when I made a particular reference to Clause 187 and the contrasting use of expressions therein. Clause 187(1) contains the expression,
- "if there are reasonable grounds for suspecting that an offence under section 183 has been committed".
- "in any case where it appears to the OFT that there is a good reason to exercise them for the purpose of investigating the affairs".
Perhaps I may ask the Minister whether the following interpretation is what is intended by the Government. Do the Government intend that the decision to make an investigation should be a decision which is predicated on reasonable grounds for suspecting but that thereafter, once those reasonable grounds are present, the means by which the investigation is conducted is based on a subjective view about what appears to be a good reason for exercising a particular power to pursue that investigation? Is that the distinction that the Government seek to make?
Lord McIntosh of Haringey: Nearly. The first part of the proposition is certainly right. The noble Lord, Lord Kingsland, is right in saying that the test for launching an investigation in Clause 187(1) is reasonable grounds for suspecting that an offence has been committed. The test for using powers in Clause 187(2) for the purpose of an investigation under subsection (1) is in any case where it appears to the Office of Fair Trading that there is good reason to exercise them. Therefore, he has described the situation precisely.
The OFT can carry out an investigation if there are reasonable grounds for suspecting that an offence under Clause 183 has been committed. The power of investigation cannot be used unless the threshold has been met. Therefore, the use of the powers is subject to the test in Clause 187(1).
However, whether there are reasonable grounds for suspicion will depend on the information available. Examples of information that could be sources of
reasonable grounds for suspicion are records of secret meetings or statements from employees or complaints. I do not know that I would call those "subjective", but they will be unearthed only as an investigation under the strict test of Clause l87(1) proceeds. That is why we must have the complication of the succeeding clauses in the Bill. But certainly the noble Lord's principal proposition is entirely correct.
Lord Kingsland: In a sense, subsection (2) of Clause 187 comes before subsection (1). In order to establish whether there are reasonable grounds for suspecting, am I right in thinking that the Government are entitled to move straight to subsection (2) and, on the basis of the subjective test, to probe around?
Lord McIntosh of Haringey: No. As subsection (2) says, that would be the case,
- "only for the purposes of an investigation under subsection (1)".
I believe it is being suggested that government could use subsection (2) for fishing expeditions. They cannot because they would have to apply the reasonable suspicion test, and that is subjective. That is why I resisted the word "subjective". Evidence is required.
Lord Kingsland: Subsection (2) can be triggered only by subsection (1)? I am most grateful. In those circumstances, I shall not press the Question whether the clause shall stand part.
Clause 188 [Powers when conducting an investigation]:
Lord Hunt of Wirral moved Amendment No. 191:
- Page 136, line 30, leave out from beginning to second ", to" and insert "past and present employees of the business of which the person under investigation is an officer or employee"
The noble Lord said: In Clause 188 we move to the subject of the powers of the Office of Fair Trading when conducting an investigation. Amendment No. 191 would leave out in the second line of subsection (1) the words,
- "any other person who it has reason to believe has relevant information",
- "past and present employees of the business of which the person under investigation is an officer or employee".
In many ways, I simply seek to test the Minister as to why such a wide power of conducting an investigation is necessary. It can cover anyone without limit in deciding whether or not a person may have been involved in the business which is the subject of the investigation. It is a probing amendment and I look forward to hearing the Minister's response. I beg to move.
Lord McIntosh of Haringey: The straightforward answer is that the information relevant to the investigation could be held by undertakings or individuals who are not and never have been formally connected to the business of the person under investigation. One could have difficulty with the
wording of this amendment. One could ask whether someone was an employee, a former employee, agency staff or a contractor. It could make effective investigations very difficult. But the fundamental answer I give to the noble Lord is that these are not new powers. They are powers comparable to those given to the Serious Fraud Office in the Criminal Justice Act 1987 and to the Office of Fair Trading itself in the Competition Act 1998, and they have not caused any problems.9.15 p.m.
Lord Peyton of Yeovil: The Minister has used the words, "One could have difficulty". He is referring to the people who will have the powers, if the amendment is passed. I am worried about the people against whom the powers, which seem to be rather sweeping, are exercised. This is not the first time that I have trodden this ground. I did so the other day with as reasonable a man as the noble Lord, the Minister for Science. I had hoped that he might at least recognise some of my anxieties. I felt deeply disappointed and downcast that his reply did not produce a word of comfort.
My anxieties about giving people wide powers to seek information have been greatly increased and enhanced by the recent conduct of the Financial Services Authority, which has stimulated banks, stockbrokers and chartered accountants to check whether clients whom they knew perfectly well may or may not be tempted to engage in money laundering. Many perfectly innocent people are badgered by authority, and people abuse authority—a point that does not really occur to anyone as reasonably minded as the noble Lord who is handling this Bill. It worries me that people in authority, having the power to obtain information, may decide to cast their nets as wide as possible, regardless of how many people that may annoy and irritate.
So far as I am concerned, the Financial Services Authority has been totally unresponsive to complaints, nor does it seem to be aware of the immense irritation that it causes. I cannot believe that those who sent the inquiry forms to me have, as a result of bothering people such as myself, been in any way successful in checking the undesirable habit of money laundering by criminals. The Government should be very careful before granting powers of this kind. They can be quite certain that they will be, and very often are, abused.
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