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Lord Peyton of Yeovil: My Lords, I am grateful to the noble Lord. I remind him of my purpose, which was slightly clearer than the clause. Nevertheless, I am grateful to him for reading out that illuminating passage from the Explanatory Notes. It would not be the first time that an explanation has resulted in greater length and more obscurity. That is in no way his fault. To ask the noble Lord to exert his talents in improving on these things without much notice would, I realise, be asking far too much and be more unreasonable than even I could ever dream of being.
It was never my intention to spoil the clause or to lacerate it in some way by leaving out such gems of language as these two amendments cover. What I had hoped to do was to penetrate slightly its opaqueness. I realise that that was taking on rather a big task and was asking the noble Lord to do really more than he had the time to do today, despite his immense talents. In the circumstances, there would be no point in going back to this rather wearing subject. I merely take the opportunity to appeal to the noble Lord's good nature and wisdom, and to ask whether he could exert these great qualities, which we know he has, to leave out, wherever possible, such awful language, instead of marring that wastepaper basket which is familiarly known as the statute book with more garbage than it already has. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
3.45 p.m.
Clause 213 [Interim enforcement order]:
Lord McIntosh of Haringey moved Amendment No. 175:
- Page 159, line 19, at end insert—
The noble Lord said: My Lords, in moving Amendment No. 175, I shall speak also to Amendments Nos. 180, 181 and 182. Amendment No. 175 responds to the opinion of the Joint Committee on Human Rights that it would be beneficial to draw attention on the face of the Bill to the need for the courts to take account of the whole picture when considering an application for an interim enforcement order under Part 8 and not to simply accept the applicant's ipse dixit. I thought we did not do that any more—I am shocked—but it comes from the Joint Committee on Human rights and not from the Government.
Clause 224 requires the OFT to publish advice and information to explain the provisions of Part 8 and to indicate how it expects them to operate. It would be inappropriate to legislate to tell the court to look at the evidence before it in deciding whether to make an interim enforcement order. However, when an application is made without notice being given to the person named in the application, the whole picture is necessarily limited to the evidence put before it by the applicant.
It is our view that on an application without notice the applicant will be obliged to put before the court all material facts and the court will consider them in deciding whether to make an interim enforcement order. The Joint Committee agrees that this is likely to be the case. But, for clarity, Amendment No. 175 includes the obligation on the face of the Bill.
The amendment, which applies to applications made both with and without notice, matches a similar provision in practice direction 25 in England and Wales on interim injunctions. The obligation to disclose all matters which are known to the applicant and which are material to whether or not the application is granted will enable the court to consider the whole picture. This will be true both when an application is made without notice and when an application with notice is not contested by the defendant. Where an application with notice is contested, the defendant will be able to put before the court any additional considerations against making the order sought and which may not be known to the applicant.
Amendments Nos. 180 and 181 are in response to an amendment tabled in Committee which the Government agreed to consider. The amendment recognises that the existing wording of Clause 224(5), which states:
I turn to Amendment No. 182. Clause 227(4) and (5) set out the circumstances in which the supply of goods or services wholly or partly outside the United Kingdom are to be regarded as being supplied to a consumer in the UK so that the provisions on domestic infringements will apply to those transactions. The existing definition of the arrangements for supply which had to be satisfied mirrored those currently in Section 138(3) of the Fair Trading Act 1973. That Act
On Question, amendment agreed to.
Clause 215 [Further proceedings]:
[Amendment No. 176 not moved.]
Clause 217 [Bodies corporate: accessories]:
[Amendments Nos. 178 and 179 not moved.]
Clause 224 [Advice and information]:
Lord McIntosh of Haringey moved Amendments Nos. 180 and 181:
The noble Lord said: My Lords, I beg to move formally.
On Question, amendments agreed to.
Clause 227 [Goods and services]:
Lord McIntosh of Haringey moved Amendment No. 182:
On Question, amendment agreed to.
Lord McIntosh of Haringey moved Amendment No. 183:
The noble Lord said: My Lords, in moving Amendment No. 183, I shall speak also to Amendments Nos. 184, 186 and 187, which are government amendments. I shall also refer to Amendments Nos. 185 and 188 standing in the name of the noble Lord, Lord Kingsland.
Amendments Nos. 183 and 184 are minor technical amendments. They ensure that the definition of "enactment" in Clause 233 can include Scottish and Northern Ireland legislation, and subordinate legislation. This is to ensure that Scottish and Northern Ireland legislation can be added to Schedule 14 by order after Royal Assent, and so brought within Part 9.
Amendments Nos. 186 and 187 bring the disclosure gateway for criminal proceedings in Part 9 into line with the equivalent gateway in the Anti-terrorism,
We are aware of a number of successful cases in which industry bodies, in particular, have used such information to assist with private prosecutions for copyright theft. We do not want to prevent such cases being taken in future and see no reason why the gateway for criminal proceedings in the Bill should be narrower than that in the Anti-terrorism, Crime and Security Act 2001.
We are accompanying that widening of the gateway for criminal proceedings with an additional safeguard that must be taken into consideration by a public authority before information is disclosed under that gateway. Amendment No. 187 adds a requirement that, before disclosing information for the purposes of UK criminal proceedings, the disclosing authority must have satisfied itself that the disclosure is proportionate to what is sought to be achieved by it. That responds to an amendment tabled in Committee which my noble friend Lord Sainsbury agreed to consider. It also brings Clause 237 into line with the Anti-terrorism, Crime and Security Act 2001.
Amendment No. 188, tabled by the noble Lord, Lord Kingsland, is virtually identical to the amendment that my noble friend Lord Sainsbury agreed partially to consider in Committee. I hope that our version is satisfactory.
Finally, No. Amendment 185, tabled by the noble Lord, Lord Kingsland, and others, would prevent an investigator or prosecutor from using any information obtained under Part 6 of the Bill for the purpose of subsequent proceedings under the Competition Act 1998 unless that information could have been obtained by the Office of Fair Trading or the Serious Fraud Office in any event using their existing powers. All of the powers contained in Part 6 are modelled on existing powers contained in Part II of the Criminal Justice Act 1987, but for one exception that I shall describe. So those powers are not novel and are regularly applied during criminal investigations. Furthermore, the powers are also available to the OFT under existing provisions of the Competition Act 1998.
The exception is the intrusive surveillance powers under the Regulation of Investigatory Powers Act 2000, which are not provided for in earlier legislation but which are appropriate and necessary for the investigation of cartels. It is accepted and common practice by law enforcement agencies that if, during a properly conducted investigation, evidence is uncovered that points to a different civil or criminal offence having being committed, that evidence can be used in a court of law.
The decisive point is that evidence must be obtained using proper powers and observing all existing safeguards. Information gathered under the Part 6 powers will have been obtained to the highest standard. In particular, any investigation using powers under the Regulation of Investigatory Powers Act 2000 is subject to high safeguards. That Act was passed by both Houses to ensure that any type of surveillance powers are exercised in such a manner as to ensure the safeguarding of the human rights of those under investigation.
The Joint Committee on Human Rights expressed itself as content with Part 6 of the Bill. In its 18th report, it stated:
For all those reasons, evidence obtained through an investigation under Part 6 should be admisssible for the purpose of civil proceedings under the Competition Act 1998. I hope that in anticipating the speech to be made by the noble Lord, Lord Kingsland, or his colleagues, I have accurately expressed the intention behind Amendments Nos. 185 and 188. I beg to move.
"(5A) An application for an interim enforcement order must refer to all matters—
(a) which are known to the applicant, and
(b) which are material to the question whether or not the application is granted."
"If the OFT is preparing advice or information",
is inappropriate, given that this section requires the OFT to produce such guidance.
Page 165, line 39, leave out "If the OFT is" and insert "In"
Page 165, line 39, leave out "it" and insert "the OFT"
Page 167, line 16, leave out from "made" to end of line 20 and insert "by any means and—
(a) at the time the arrangements are made the person seeking the supply is in the United Kingdom, or
(b) at the time the goods or services are supplied (or ought to be supplied in accordance with the arrangements) the person responsible under the arrangements for effecting the supply is in or has a place of business in the United Kingdom."
Page 169, line 19, at end insert—
"( ) In subsection (1) the reference to an enactment includes a reference to an enactment contained in—
(a) an Act of the Scottish Parliament;
(b) Northern Ireland legislation;
(c) subordinate legislation."
"In our view the rights of suspects, including the privilege against self-incrimination, are adequately protected".
If we were to accept the amendment, we should put in question any evidence currently obtained under the Criminal Justice Act 1987 subsequently used in civil proceedings.
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