Clause 184 - Powers when conducting an investigation
Enterprise Bill
5:15 pm
Mr Nigel Waterson (Eastbourne, Conservative)
On any view, clause 184 and the following clauses contain some wide powers for the OFT. If members of the Committee have any role in life, it is to ensure that the powers are limited, clear and transparent and that they cannot be misused once the Bill becomes law. The amendments on clauses 184 and 185, grouped together, are designed to do just that.
We think that the current wording of clause 184 is too broad, as does the CBI, and could lead to individuals not actually related to the company using the offence and a potential investigation in a malicious or vexatious way. The requirement should be limited to past and present employees of the company. Indeed, that is precisely the group of people who are most likely to be involved in the investigations: people who are currently working for the company or previous employees, either in the role of providing information on behalf of the company or in the role of whistleblowers. It seems to us eminently fair and sensible that the power be limited in that way.
Amendment No. 97 makes it clear that the notice given under the clause must be specific. It must indicate the subject matter and purpose of the investigation. That is a question of fairness and due process. There has already been a concern expressed on the Opposition side of the Committee about potential fishing expeditions. We have seen investigations in the past where people in situ, as part of a dawn raid or whatever, grabbed everything in sight—computers, files or anything they could lay their hands on—only to have arguments later on about whether that was in the terms of the warrant that formed the basis of the investigation. The notice should be explicitly required to state the subject matter and purpose of the investigation. We cannot allow law-abiding businesses to find themselves investigated, raided or disrupted by people trying to find evidence on which to base an investigation, who have no prima facie reasons that they can set out in the notice for that investigation.
Amendment No. 98 is eminently fair; it would explicitly recognise the right to silence and the right against self-incrimination, with a requirement on the OFT to advise persons being investigated of their rights in that respect. That is another example of how the OFT investigations can and should be made more difficult—as long as the Minister is intent on bringing such draconian criminal sanctions. It is as simple as that. It is a question of fairness and following the same procedures as if people were being investigated for some existing criminal offence. There should be no infringement of the right to silence or the right against self-incrimination.
We have already raised the issue of human rights legislation at least once. I cannot for the life of me understand how the Secretary of State feels able to declare that the Bill does not contravene the human rights legislation. There are substantial arguments involved; once investigations start revving up, and high-grade lawyers are instructed by those being investigated, we will see the arguments being deployed. Matrix chambers and others will be wheeled out to develop the arguments at length, and at great expense. We may as well have it out now rather than later.
Amendment No. 99 puts down a perfectly clear requirement, in the context of alleged criminality, that any person should be entitled to have a lawyer of his choice present throughout the investigation, and that the OFT should advise people of their rights in that respect. I would have hoped that I did not need to develop that argument at any length. It seems axiomatic that it is the sort of right available to suspects in any criminal situation. It is the Government's decision to turn the matter into a criminal one. Therefore, they must accept all that goes with a criminal investigation.