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Lord Sainsbury of Turville: I shall speak to Amendments Nos. 255, 256, 257, 258, 260 and government Amendment No. 259.
Amendment No. 255 seeks to prevent an investigator or prosecutor from using any information obtained under Part 6 of this Bill for the purpose of subsequent proceedings under the Competition Act 1998, unless that information could have been obtained by the OFT or the SFO in any event using their existing powers. All powers contained in Part 6 of the Bill are modelled on existing powers contained in Part 2 of the Criminal Justice Act 1987. Therefore, these powers are neither new nor novel, and are regularly applied during criminal investigations.
If during an investigation evidence is uncovered that points to a different offence having been committed, it is accepted and common practice by law enforcement agencies that that evidence can be used in a court of law. The decisive point is that evidence has to be obtained using proper powers and observing all existing safeguards. Information gathered under Part 6 powers will have been obtained to the highest standard and should, therefore, be admissible for the purpose of civil proceedings under the Competition Act 1998.
If we were to accept this amendment we would put in question any evidence currently obtained under the Criminal Justice Act 1987, which is subsequently used in civil litigation. I should also point out that the Joint Committee on Human Rights expressed itself content with Part 6 of the Bill. In its 19th report it said:
- "In our view the rights of suspects, including the privilege against self-incrimination, are adequately protected".
Amendment No. 256 seeks to introduce further safeguards with reference to the disclosure of information in relation to criminal proceedings. I have some sympathy with the sentiment behind this amendment. Ensuring that there are reasonable grounds for suspecting that the information is relevant to a criminal investigation or proceedings and that disclosure is proportionate to what is sought to be achieved by it appear, at first sight, to be fairly sensible.
However, I look less favourably on forcing the public authority to be satisfied that the subject of the information has committed an offence before making a disclosure. This could create a catch-22 situation, whereby the information is needed to establish that the subject has committed an offence, yet the information cannot be given unless that has been established. However, we agree to consider the issues raised by paragraphs (a) and (c) of the amendment.
Amendment No. 257 seeks to impose a stronger duty on the Secretary of State to ensure that directions made by her to block the disclosure of information requested by an overseas authority are brought to the attention of those parties likely to be affected. The suggested change would have little practical effect on the operation of the clause. The Bill already gives the Secretary of State a duty to take such steps as she considers appropriate to bring her decision to block the disclosure of information to an overseas authority to the attention of parties likely to be affected by the decision. In the vast majority of cases, the actions that she takes to fulfil that duty will be those that are necessary to bring the relevant direction to the attention of the relevant parties.
The use of the word "necessary" would impose a duty on the Secretary of State to ensure that all relevant parties are informed. However, there may be rare occasions when, despite taking all reasonable steps, it is not practically possible to bring the direction to the attention of all the affected parties.
I turn to Amendment No. 260, which seeks to introduce a requirement for parties likely to be affected by a decision to disclose information to an overseas public authority to be given 28 days' notice before the disclosure occurs. Information requested will be for the purpose of criminal investigations, and civil investigations of consumer or competition breaches. It could be damaging to any such investigation if the disclosure of potentially critical evidence has to be brought to the attention of any person or company under investigation. Some complex fraud or cartel investigations rely on the investigating authority being able to collect evidence without alerting potential suspects to the nature of an investigation at an early stage to prevent evidence from being destroyed.
The requirement that the disclosing authority should notify,
- "any person likely to be affected",
Government Amendment No. 259 proposes to add to Clause 238 a set of considerations to which an authority must have regard before disclosing information to overseas authorities. As the noble Lord, Lord Kingsland, said, the Joint Committee on Human Rights made some important recommendations to ensure that
the overseas disclosure provisions were subject to even tighter safeguards. The committee recommended that the considerations that will be used by UK public authorities when making decisions on disclosure to overseas authorities should not be left to be drafted by the OFT, as currently required, but should be placed on the face of the Bill.The committee also recommended that the criteria should include a consideration on whether the disclosure being contemplated would be proportionate to a pressing social need that the disclosure would address, and whether the matter for which disclosure is sought is sufficiently serious to justify disclosure. The Law Society and the CBI have put forward similar recommendations. The Government have listened carefully to those recommendations and agree to them.
Amendment No. 259 addresses the recommendations made by the Joint Committee on Human Rights, the CBI, and the Law Society. The 19th report of the committee accepts that this amendment meets its concerns. The considerations as set out in the amendment will ensure that information is disclosed only when public authorities are satisfied that the matter for which the information is requested is sufficiently serious rather then speculative and little more than a "fishing expedition".
I return to Amendment No. 258. We hope that Amendment No. 259, tabled in my name, will meet many of the concerns raised by the noble Lord. We believe that it is right to rely on public authorities rather than the Secretary of State to take responsibility for decisions to disclose. However, our amendment recognises, as does the noble Lord's amendment, the need for careful consideration of a variety of important issues before disclosure is made—including whether the relevant country provides appropriate data protection laws, and whether the matter is sufficiently serious to justify disclosure of the information.
As regards paragraphs (b), (c), and (d) of Amendment No. 258, I should stress that Clause 240 already ensures that the disclosing authority must have regard to whether disclosure would be,
- "contrary to the public interest",
I should like to take away and consider the matter introduced by Amendment No. 256, and reflect further on the issues introduced by paragraphs (a) and (c) thereof. On this basis, I also ask the noble Lord not to press this amendment. Finally, I commend Amendment No. 259 to the Committee.
Lord Kingsland: I am most grateful to the Minister for that very full and extremely helpful response. In those circumstances, I shall be delighted to comply with the noble Lord's request about not pressing the amendments. I look forward on Report to seeing the
consequences of some creative thinking about Amendment No. 256 on the face of the Bill. I beg leave to withdraw my amendment.Amendment, by leave, withdrawn.
Lord Davies of Oldham: I beg to move that the House do now resume. In moving the Motion, perhaps I may suggest that the Committee stage on the Bill begin again not before twenty-nine minutes past eight o'clock.
Moved accordingly, and, on Question, Motion agreed to.
Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002
7.29 p.m.
Adjourned debate on the Motion of the Lord McIntosh of Haringey resumed.
Lord McIntosh of Haringey: My Lords, I beg to move the Motion standing in my name on the Order Paper. With the leave of the House, this is a resumption of our previous debate on the regulations. I commend them to the House.
Moved, That the draft regulations laid before the House on 9th July be approved [35th Report from the Joint Committee].—(Lord McIntosh of Haringey.)
On Question, Motion agreed to.
Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (Amendment) Regulations 2002
Lord McIntosh of Haringey: My Lords, these draft regulations have already been debated. I commend them to the House. I beg to move.
Moved, That the draft regulations laid before the House on 9th July be approved [35th Report from the Joint Committee].—(Lord McIntosh of Haringey.)
On Question, Motion agreed to.
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