Mr Andrew Mitchell (Shadow Minister, Economic Affairs; Sutton Coldfield, Conservative)

I beg to move amendment No. 18, in

clause 21, page 25, line 26, after 'may', insert

', subject to subsection (3A),'.

Mr Derek Conway (Old Bexley & Sidcup, Conservative)

With this it will be convenient to discuss the following amendments:

No. 19, in

clause 21, page 25, line 32, after subsection (3) insert—

'(3A) Where the relevant premises consist either of premises all parts of which are used for residential purposes or of premises which can only be accessed via premises or parts of premises which are used for residential purposes an inspector or investigator shall not exercise his powers under subsection (2) without a warrant issued under section 453C by a justice of the peace and if such a warrant is issued the inspector's or investigator's powers under subsection (2) shall be limited to his powers under such warrant.'.

No. 20, in

clause 21, page 25, line 33, after 'subsection (2),', insert

'subject to the terms of any warrant issued under section 453C'.

No. 21, in

clause 21, page 27, line 8, at end add—

'(2) After section 453B of that Act insert—

''453C Entry into residential premises

(1) A justice of the peace may issue a warrant under section 453A(3A) if satisfied on information on oath given by or on behalf of the inspector or investigator authorised under section 453A(3A) that there are reasonable grounds for believing that access to any premises falling within section 453A(3A) will materially assist the inspector or investigator in the exercise of his functions under this Part.

(2) A warrant under section 453A(3A) may authorise the inspector or investigator, accompanied by a constable and any persons thought appropriate under section 453A(4) and any other constables—

(a) to enter the premises, and

(b) to remain there for such period as the inspector or investigator thinks necessary, or for such period as the warrant may provide, for the purpose mentioned in subsection 453A(1)(b).

(3) A warrant may be issued under section 453A(3A) subject to conditions.

(4) Sections 448(5) and 448(9) shall apply to the issue of a warrant under section 453A(3A) as they apply to the issue of a warrant under section 448(1).''.'.

No. 22, in

clause 22, page 27, line 10, leave out '453B' and insert '453C'.

No. 23, in

clause 22, page 27, line 12, leave out '453C' and insert '453D'.

No. 34, in

schedule 2, page 55, line 31, at end insert—

'(d) any person accompanying an inspector or investigator pursuant to section 453A(3A).'.

I nearly added the next group of amendments as well there. I was getting carried away by my enthusiasm.

Mr Andrew Mitchell (Shadow Minister, Economic Affairs; Sutton Coldfield, Conservative)

You are absolutely right to get carried away by your enthusiasm for the amendments that I now have the honour to put before the Committee, Mr. Conway.

I draw the Committee's attention to amendment No. 18 and, in particular, amendment No. 19. Amendment No. 20 would make a number of consequential changes. Amendment No. 21 deals with entry into residential premises, and amendments Nos. 22 and 23 are consequential on it.

The amendments concern clause 21, which would insert new sections 453A, 453B and 453C into the 1985 Act and would confer on inspectors and investigators a new power to require entry to and remain on the relevant premises. The relevant premises are defined in proposed new section 453A(3) as

''premises which the inspector or investigator believes are used (wholly or partly) for the purposes of the company's business.''

Investigators and inspectors are thus being given the power to enter and remain on premises that are, in some cases, also domestic residential properties.

Not infrequently, the subject of an investigation pursuant to the powers conferred by section 447 of the 1985 Act is a small business. It is by no means uncommon for such businesses to trade from, or have their registered office at, the director's home address; if a business operates from small premises where space is scarce, books, records and other materials may be stored at the directors' homes.

Previously, under the 1985 Act, investigators and inspectors had to obtain a warrant under section 448 before being able to enter any premises. The Bill would empower an official to enter the premises and remain there as long as they thought necessary to assist materially with their functions. The provision requires only that they should be authorised by the Secretary of State to do that—one can see that in practice such authorisation would be given as a matter of course at the start of any investigation—and that they should think that entering the premises would materially assist them in exercising their investigatory function, which I have already mentioned this morning.

The Bill effectively gives investigators carte blanche. In contrast to the existing law, it does not require any failure to produce documents or information before the exercise of the powers. The amendment would impose on inspectors and investigators a requirement

to seek a warrant before entering and remaining on residential premises—to mitigate the possible abuse of the broad power of entry and its impact in situations where domestic or family arrangements overlap with company activity. The amendment would preserve the status quo with regard to residential property, without restricting the powers to enter and remain on separate company premises.

No one disputes that there may be times when, to avoid frustrating the purposes of an investigation, access to premises of mixed use will be necessary. However, the power to enter and remain on residential property, in a domestic setting, is a draconian one. It is potentially highly intrusive into the private lives of children or others with no direct connection to the company's business. If such intrusion is necessary, it must also be proportionate.

Let us imagine that an inspector were to arrive at a family home during a children's meal time or at bed time, or during a visit by an elderly or infirm relative. Amid the chaos the harassed mother might ask the investigators—there could be more than one—to wait, or to come back the following day when co-operation would be easier. The Bill would permit the inspectors to enter and to insist on staying as long as they thought necessary. If challenged they would need only to reply ''We think it necessary''. Refusal to bow to their demands would put the mother at risk of contempt proceedings under proposed new section 453C, on the basis of the inspectors' certification alone.

Alternatively, an inspector who was dissatisfied with the comprehensiveness of the information provided by a director might turn up at the director's home, in front of his family, and insist on staying until the director told him what he expected to hear. We cannot grant the powers in such a form.

I considered tabling an amendment that would impose a limit of five years on the time that an investigator might stay—but I am sure that the Minister will understand that we cannot agree to such an open-ended power. We must stand up for our constituents. The clause presents a frightening prospect. It is right and proper for the power in it to be carefully circumscribed; there should be proper defences against the potential for abuse.

I do not doubt that in practice, the DTI's appointed officials will maintain their excellent standards of professionalism, and will strive to act sensitively in the exercise of the new powers. However, opinions may legitimately differ on what is intrusive or oppressive. Officials' actions may inadvertently exceed what is reasonably necessary. In testing the effectiveness of protection against intrusive powers, it is no use assuming the best. The law that we enact must be proof against the deliberately or inadvertently abusive.

Moreover, there is no provision in the Bill for any mechanism to allow anyone to complain about or obtain effective relief from the abuse of the power by an inspector. Instead, individuals are left to the cumbersome and specialised remedies available under the general administrative law. The Government should give further consideration to that omission.

The requirement for inspectors and investigators to obtain a warrant, which may be subject to conditions, before entering and remaining on residential premises, would provide an effective safeguard against over-zealous officialdom or abuse, and ensure that any necessary intrusion was carefully and independently weighed for proportionality before it took place.

I turn now to amendments Nos. 32, 26 and 27. Amendment No. 32 would add a new subsection to the clause. The purpose of the amendments is to include within new section 453A clear limits on the times during which the power to enter and remain on premises can be exercised by inspectors. I remind the Committee that relevant premises may include domestic as well as business premises.

In the Bill in its present form, the rights to exercise the powers are triggered by what the inspector or investigator thinks would materially assist them in the exercise of their functions and what, in the case of remaining on premises, is necessary for that purpose. The time for exercising the power is circumscribed in only the vaguest of ways by the words, ''at all reasonable times.'' We feel strongly that that balance is not right.

My amendment would add a subsection to new section 453A to make it clear that the exercise of those powers is to be limited to normal office hours, which are defined as being between 9 am and 5.30 pm on Monday to Friday—

Ms Jacqui Smith (Minister of State (Industry and the Regions and Deputy Minister for Women), Department of Trade and Industry; Redditch, Labour)

Perhaps you could advise us, Mr. Conway. The hon. Gentleman has now moved on to amendments Nos. 26, 27, 30, 31 and 32, which are about times. I understood that we were going to discuss those in a separate bunch from the amendments about which the hon. Gentleman has already spoken.

Mr Derek Conway (Old Bexley & Sidcup, Conservative)

We are taking them as a separate bunch, but I had not spotted that we had got on to them. They are related to the group under discussion.

Mr Andrew Mitchell (Shadow Minister, Economic Affairs; Sutton Coldfield, Conservative)

Yes, Mr. Conway. The points that I am making specifically relate to different amendments, but it may be helpful to the Minister if I make my case in respect of clause 21 in one go. That may also speed up the proceedings of the Committee.

Mr Derek Conway (Old Bexley & Sidcup, Conservative)

Order. It is acceptable to lump the amendments together if that helps the Minister, the mover of the amendments and the Cttee. We do not like breaking across clauses, but the amendments all relate to the same clause. If it facilitates the debate, and as the issues are related, I am happy to discuss the two sets of amendments together. If that facilitates the debate, it will not be out of order.

We are therefore now also considering the following amendments:

No. 26, in

clause 21, page 25, line 26, at end insert 'during normal office hours'.

No. 27, in

clause 21, page 25, line 28, after 'there', insert 'during normal office hours'.

No. 30, in

clause 21, page 25, line 28, after 'necessary', insert

', not exceeding one month,'.

No. 31, in

clause 21, page 25, line 28, after 'necessary' insert

'not exceeding one month (or such longer periods as may be authorised by the Secretary of State)'.

No. 32, in

clause 21, page 25, line 29, at end insert—

'(2A) Except when the investigator or inspector reasonably believes that the exercise of his functions under this Part would otherwise be seriously impaired the powers under subsection (2) shall be exercised between the hours of 9 am and 5.30 pm and between Monday and Friday.'.

Mr Andrew Mitchell (Shadow Minister, Economic Affairs; Sutton Coldfield, Conservative)

I was explaining that my amendment deals with the times at which an inspector may enter premises. In view of my earlier description of a harassed mother, I have no doubt that my suggestion that the powers should be exercisable only during the course of a normal business day will prove enormously attractive to the Minister.

We define a normal day as being between 9 am and 5.30 pm, Monday to Friday. However, we are prepared to take into account certain circumstances in which being restricted to those times would seriously impair the work of officials.

The limitation would apply both to the power of entry and to the period during which an investigator or inspector may remain on the relevant premises. The explanatory notes state, in paragraph 131:

''A visit to business premises outside the company's trading hours would not ordinarily be regarded as taking place at a reasonable time.''

However, there is no guidance given in the Bill as to what a ''reasonable time'' might be.

In another place the Government postulated a number of alternative situations as reasons for not rising to the drafting challenge, such as the possibility that a company could trade only at night, or that it might not have its own normal business hours, or that it might change them in order to frustrate a legitimate investigation. My amendment would provide certainty and clarity about what, in most cases, would be a ''reasonable time'', while preserving the power of inspectors to operate at other times where otherwise their investigations would be seriously impaired. It remains the case that at other times and during those other periods, investigators will be required to act at reasonable times. The amendment would, in effect, impose on the investigator a duty to consider carefully whether acting outside hours that would not ordinarily be regarded as reasonable would nevertheless be necessary in any particular case because to do otherwise would impair his or her work.

I turn now to amendment No. 30, of which amendment No. 31 is a variant. Amendment No. 30, likewise, would place limits on the wide powers of officials to enter and remain on relevant premises that are contemplated under new section 453A of the Companies Act 1985. The purpose of the amendment is to impose a temporal limit on the length of time—presently limited only by what an inspector or investigator thinks is necessary to ''materially assist'' them in discharging their function. Having entered,

investigators and inspectors may remain on the relevant premises—which, as I said, may be mixed between business and domestic activity.

The extension and expansion of investigators' powers to acquire information, which are affected by the Bill, ought to assist them to complete inquiries more efficiently than hitherto. A limit on the period for which investigators can remain on premises would ensure that they did not prolong their time longer than is necessary, and conducted themselves expeditiously. In the carrying out of investigations, it would provide an effective safeguard against possible abuse in the form of excessively long-drawn-out investigations that cease to be fruitful and cross the line into oppression.

It will be recalled that the investigations under section 447 of the 1985 Act—in contrast to those to be publicly reported under section 431—are intended to be conducted confidentially and without publicity. To take the example of a business that is largely a front-of-house operation, where customers or the public have access, the fact of an investigation would be very effectively and publicly advertised by the persistent presence over a period of DTI inspectors on the premises asking questions of employees in front of customers, or even of customers themselves—that is now envisaged, as I understand it, in clause 19, which amends section 447(3) of the 1985 Act.

Nothing could be calculated to cause greater damage to the reputation of a company and its business, which might prove to have been innocent of any wrongdoing whatever. We would give favourable consideration to an appropriate Government amendment that would allow the extension of that period, where justified by circumstances. Having decided not to follow the idea that I mentioned to the Committee a moment ago of specifying a very long period to tempt the Government to circumscribe the length of time that someone can remain on premises, I have decided that the period should not exceed one month—but it could be longer if the Secretary of State agrees.

Finally, I come to amendment No. 34, which the Minister will find irresistible. The amendment seeks to add to new section 449 of the Companies Act 1985, which is entitled ''Provision for security of information obtained'', a new paragraph, (1)(d), dealing with the important issue of security of information obtained through the use of the Secretary of State's investigatory powers, and limiting the persons to whom such information may be disclosed.

New section 449 contemplates information being obtained in consequence of the exercise of the inspector's powers of entry under new section 453A, which also covers, in subsection (4), persons accompanying inspectors or investigators on such visits. The amendment includes such persons in the list of persons who are prohibited from disclosing information other than as provided for in new schedules 15C and 15D to the 1985 Act. To omit such

persons from the list of those subject to limitations on disclosure of information so obtained would be a serious lacuna in the section 449 protections.

Proposed new section 449 states:

''This section applies to information (in whatever form) obtained . . . in pursuance of a requirement imposed . . . by means of a relevant disclosure . . . by an investigator in consequence of the exercise of his powers.''

It is clear that the only reason why the Government want to omit my new subsection (4) is that the Minister has been so busy working on the law of auditor liability to see whether she can amend it. This is another example of the Conservative party being extremely helpful. I hope that the Minister will accept my amendment No. 34 to insert

''any person accompanying an inspector or investigator pursuant to section 453A(3A).''

That completes my explanation of our amendments, which are designed to protect our constituents from excessive investigatory powers. I look forward to hearing the Minister's comments on the important points I have raised.

Mr Mark Fisher (Stoke-on-Trent Central, Labour)

I have listened carefully to the hon. Gentleman. I am sure that the Minister's brief states strong resistance to all the amendments, both on clause 19 and this clause. ''Do not be seduced,'' her officials will be saying, ''by the hon. Gentleman's blandishments and blithe confidence in his amendments.'' Notwithstanding that, I hope that between now and consideration on Report she will think carefully about the general thrust of what the hon. Gentleman has been saying.

All these amendments say that Parliament must think carefully about the way that we word powers given to civil servants. Because the Minister has total confidence in her carefulness, reasonableness and intelligence, and in the carefulness, reasonableness and intelligence of her ministerial colleagues, she knows that she and they will not abuse these powers. But we always legislate not just for the Ministers who will introduce the powers, but for future Ministers, who often act in very different circumstances. Future Governments may have very different intentions and different pressures on them.

We all know from bitter experience in recent years that the thing that most undermines confidence in Parliament and most leads Parliament to take bad decisions is Ministers' sense that something has to be done in response to a particular crisis. In those circumstances, the hon. Gentleman's warnings about the powers that are delegated to civil servants are very important. In 10 years, when some nasty little crisis arises in the financial world, a Minister will find it hard to resist when civil servants say, ''Look, Minister, we have the powers. We have to go in.'' When Downing street says, ''Do something about this—we have to show that we are tough on these problems,'' the delegated powers that Parliament gives to civil servants can be treated in a very different way.

The hon. Gentleman was careful to heap praise on the Minister and the Secretary of State for being reasonable people. He was genuine in that. These are

reasonable Ministers and we can be confident that they will not allow their civil servants to abuse these powers. But I hope that between now and consideration on Report the Minister will consider the wording and perhaps devise some small but crucial amendments to some of these powers to ensure that we retain ministerial control over some powers in the Bill so that they cannot inadvertently be misused in different circumstances in the future.

Ms Jacqui Smith (Minister of State (Industry and the Regions and Deputy Minister for Women), Department of Trade and Industry; Redditch, Labour)

Clause 21 gives inspectors and investigators powers to gain access to and remain on premises that they believe are used wholly or partly for the business of the company that they are investigating. The clause calls such premises ''relevant premises''.

As I outlined, the powers can be used only if the Secretary of State specifically authorises their use and an inspector or investigator thinks, on reasonable grounds, that entering and remaining on the premises will materially assist his or her investigation of the company. An inspector or investigator can require entry to relevant premises, which, as the hon. Member for Sutton Coldfield said, may be part of domestic premises. Having gained entry, the inspector or investigator can remain there for as long as he or she thinks, on reasonable grounds, is necessary to further the investigation. The powers to enter and remain can be used only at reasonable times.

I understand the concerns expressed by the hon. Gentleman and my hon. Friend the Member for Stoke-on-Trent, Central (Mr. Fisher) about the powers, although I am not sure that they are quite as extensive as the hon. Gentleman implied. I shall address that later. It is important, however, that we are clear about the safeguards that will apply before the powers are used and while they are being used, because those safeguards are quite considerable.

When inspectors or investigators seek to enter premises under the powers in the clause, they must produce evidence of their identity and their appointment or authorisation. As soon as is practicable after they enter the premises, they must hand over a written a statement containing information about their powers as well as the rights and obligations of the company occupier and of any persons present on the premises. If nobody is there to receive it at the time, the inspectors or investigators must send it to the company afterwards. As soon as is practicable after the visit, they must prepare a written record of the visit, a copy of which must be given on request to the company and any other occupier of the premises.

The hon. Gentleman's first set of amendments is about access to residential premises and would, in effect, include a warrant procedure in the new powers in clause 21. As I suggested, the power of enforcement officers to gain access to domestic premises will always raise concerns, and the fact that we may be talking about people's homes increases the need for safeguards. It is right that the powers should not be used lightly or without due consideration, and there must be safeguards. However, let us remind ourselves

once again about the circumstances in which an investigator will arrive at somebody's domestic premises.

When an investigator arrives, the investigation will already have started. It will have to have gone through the vetting process that I outlined earlier, and the Secretary of State will have to have given sound reasons for authorising the investigation under proposed new section 447 of the Companies Act 1985. In addition, if the investigator is to be able to use the powers in clause 21, he will need to have received authorisation from the Secretary of State. To get it, he will have to have demonstrated that getting on to the premises used for the company's business would materially assist the investigation. He would therefore have to have done his homework.

A director who, for example, uses his home address as the registered office or the trading address of his business must expect that all sorts of individuals, not just company investigators, will attend that address for business purposes. While I accept specific concerns about domestic premises, we need to set them against the fact that operating within the framework of a limited liability company gives directors considerable safeguards. It also brings responsibilities—rightly so—and the ability for investigations to be carried out in ways that might be necessary to uncover wrongdoing. There is, however, a potential danger.

The hon. Member for Sutton Coldfield spelled out clearly and appropriately why people's homes are often be used for carrying out the functions of the business or for storing records. However, we need to be careful that we do not impose too many limitations on the ability to investigate in domestic premises if it is believed that they contain materials or information that could help with the investigation, as that might create an incentive to hide incriminating documents or information in people's houses.

As for restrictions in relation to the use of clause 21, let us be clear that it does not give an investigator the right to make his way on to premises by force. An individual may refuse to allow an investigator to enter premises if he has a reasonable excuse. In the scenario that the hon. Member for Sutton Coldfield outlined, the investigator would have made contact in advance and, in most cases, would have come to a mutually agreed arrangement as to when it was reasonable to enter the premises. Frankly, turning up at a house when children were having tea, when the director was not present or during a family occasion would be an unreasonable time to enter the property. In such cases, the provisos already in the Bill would protect the home owner.

There is no power to search. If there were power to search and use force, that would obviously bring the clause within warrant territory. The hon. Gentleman suggested that the current position requires a warrant. It does so because the existing procedure for entering premises relates to being able to search premises and seize documents—clearly a different scale of activity from that proposed in clause 21. If a home owner refused entry on the basis that it was unreasonable, the

investigator would need to go through the warrant procedure to be able to force entry to the premises or to search or to seize documents. That is still the case.

Also important is the fact that people can gain redress and make complaints. If someone remains on a property or enters property at an unreasonable time or in an unreasonable way, the home owner or the company owner has the ability to take action for trespass. The investigator would in fact be trespassing if he had not fulfilled the requirements laid down in the legislation.

Mr Andrew Mitchell (Shadow Minister, Economic Affairs; Sutton Coldfield, Conservative)

What the Minister says is technically correct, but the impact of what she describes is wholly wrong. The inspector would be asked why he was there. He would point to the Bill and say, ''I think I should be here.'' As the Minister did not accept my earlier amendments to strengthen those grounds, the dice are loaded entirely in favour of the inspector. In the circumstance that she rightly describes, the householder should have some power.

Ms Jacqui Smith (Minister of State (Industry and the Regions and Deputy Minister for Women), Department of Trade and Industry; Redditch, Labour)

It clearly is not sufficient simply for the investigator to ''think'' that he should be there. I have outlined the considerable processes that would have to be gone through before the investigator turned up. They would have involved vetting the complaint and authorisation by the Secretary of State. The visit could take place only at a reasonable time, and the investigator could remain only for a reasonable period.

I have already described the ability of the owner of the property to take action with respect to trespass; judicial review of the situation would also be open to them. The DTI has a code of conduct for civil servants and a published complaints procedure.

Mr Andrew Mitchell (Shadow Minister, Economic Affairs; Sutton Coldfield, Conservative)

The Minister is being most generous in giving way; these are important matters. They are also complicated matters for the director of a small business to deal with, but, nevertheless, the right hon. Lady is technically correct about the action that can be taken afterwards, including judicial review. However, given what she said when I pointed out that the fact that an inspector thinks he should be there is the only protection, why will she not accept amendment No. 28, which would leave out ''thinks'' and insert ''reasonably believes''? Her argument endorses such an amendment.

Ms Jacqui Smith (Minister of State (Industry and the Regions and Deputy Minister for Women), Department of Trade and Industry; Redditch, Labour)

No, I am afraid it does not, for precisely the reasons that we explored in discussing the previous amendments. As I said, there is no legal difference in terms of definition between ''thinks'' and ''reasonably believes''. Anyway, changing those words around in no way restricts the limitations that I have already explained in relation to the ability of the property owner to refuse access and the responsibility of the investigators to ensure that they are entering the premises at a reasonable time and staying on the premises only for a reasonable period.

These are important, but relatively limited, powers and they are not in warrant territory. A warrant procedure would be entirely disproportionate in the present context, and would probably exacerbate precisely the type of situation that the hon. Gentleman wants to avoid. A warrant procedure is far more confrontational than the procedure envisaged in the clause, which legally strengthens the ability of the investigators to have more of the force of law behind them when they have to get the permission of the owner of the property to enter it. The clause gives them a little more ability to say to the property owner, ''Given that this is a reasonable time, that I will be staying for a reasonable period and that I have gone through the authorisation procedure and the vetting process for this investigation, it is reasonable that I am now able to enter your premises.''

A warrant could mean the investigator, accompanied by a police officer, turning up on the doorstep at the children's teatime. That is a much less satisfactory situation than the process I outlined. What the hon. Gentleman proposes would be counter-productive: it would create the impression that a criminal activity was being investigated and make it difficult to prevent the investigation from becoming public.

I remain of the view that our approach in clause 21 is appropriate. We have provided safeguards specifically because of the intrusive nature of the powers; we considered a warrant procedure but decided against it. On the basis of that reassurance, I hope the hon. Gentleman will not press his amendments to a Division.

The second group of amendments would place a restriction on the times at which investigators' powers to enter and remain in premises can be used. Amendments Nos. 26, 27 and 32 would restrict the hours between which an inspector or an investigator can require entry to, and remain on, premises using the powers in new section 453A. The amendments propose three alternatives; those in amendments Nos. 26 and 27 are based on the idea of normal office hours. It is not clear what normal office hours imply. In the modern day and age, many companies operate at hours to suit their customers and many service providers now operate outside what might traditionally have been regarded as normal office hours, because their customers are at work and therefore unavailable then.

Members of the Committee may well have received telephone calls from their banks in the evening or had contacts with businesses at weekends. The hon. Member for Sutton Coldfield and other hon. Members might not have been able to take advantage of those services, because they were still here in Parliament—as we were yesterday evening—where normal office hours would be difficult to define. The proposals would introduce uncertainty, which would hamper the effectiveness of the powers. Instead, we have provided that investigators can enter and remain on premises only at reasonable times.

Amendment No. 32 is even more explicit than amendments Nos. 26 and 27, and would limit the ability of investigators to exercise their powers to between the hours of 9 am and 5.30 pm, between Monday and Friday.

Amendment No. 32 appears to recognise that that could cause difficulties by providing for an exception where an investigation could be impaired by visits to premises being confined to those hours. I therefore hope that the hon. Gentleman is receptive to my argument that not all companies have hours of 9 am to 5.30 pm. If we were to set out in statute the hours during which visits could be made to premises, some dodgy companies would simply operate outside those hours to avoid being visited by investigators.

Either the implication of amendment No. 32 is not clear or it would constrain the investigator's ability to be on a company's premises at precisely those times when it was operating. In that way, amendment No. 32 strikes the wrong balance. Instead, we have included a test of reasonableness, in proposed new section 445A(2). The test applied will mean that the inspector or investigator may require access only at a reasonable time and can remain on the premises only for as long as it is reasonable for the company or other occupier to have him.

That, of course, means that investigators will have to take account of a company's genuine trading hours, but that approach means that the test of reasonableness depends on all the circumstances. That is preferable to trying to apply a general rule, which would lead to the need to introduce precisely the kind of qualification that the hon. Gentleman has had to set out in amendment No. 32, in proposed new section 453A(2A), which allows an exception to be made only in cases of serious impairment. That strikes entirely the wrong balance.

Finally, amendments Nos. 30 and 31 refer to an inspector or investigator being able to remain on premises only for a period not exceeding one month. I was not completely clear about the intentions behind those amendments and I am still not clear following the hon. Gentleman's exposition. It seems that there are two possible interpretations, which highlights a defect with the drafting.

Mr Andrew Mitchell (Shadow Minister, Economic Affairs; Sutton Coldfield, Conservative)

Amendments Nos. 30 and 31 are absolutely clear, in that they would restrict the time for which an inspector or investigator may stay on the premises to one month. At the moment the period is completely open-ended. I seek the Committee's support for the idea that an inspector should be able to stay only for one month. I explained that I had considered a longer period, but that I wanted the legislation to introduce a constraint. Equally, however, amendments Nos. 31 and 30 are generous, because I make it clear that where one month is not adequate and a reason is given, the period can be extended. That is very clear indeed.

Ms Jacqui Smith (Minister of State (Industry and the Regions and Deputy Minister for Women), Department of Trade and Industry; Redditch, Labour)

In that case, I pose two potential readings of those amendments. First, they could be read as allowing an inspector to stay for a whole month, regardless of whether that was a reasonable

period or was undertaken during reasonable hours. I do not think the hon. Gentleman intends that, but, given the drafting, that is how amendments Nos. 30 and 31 could be interpreted.

Mr Andrew Mitchell (Shadow Minister, Economic Affairs; Sutton Coldfield, Conservative)

I hesitate to correct the Minister, but if she looks carefully, she will see that the words are ''not exceeding one month''. There is therefore no question of the inspector being able to remain for a statutory month as the period is any time up to, but not exceeding, one month.

Ms Jacqui Smith (Minister of State (Industry and the Regions and Deputy Minister for Women), Department of Trade and Industry; Redditch, Labour)

We might have to disagree on whether the effect is as the hon. Gentleman suggests, even given the intention that he has spelt out.

Mr Andrew Mitchell (Shadow Minister, Economic Affairs; Sutton Coldfield, Conservative)

If I offered to withdraw the amendment and allow the Minister's Department to redraft the clause and bring it back on Report, would that be helpful?

Ms Jacqui Smith (Minister of State (Industry and the Regions and Deputy Minister for Women), Department of Trade and Industry; Redditch, Labour)

I know that the hon. Gentleman is always trying to be helpful, but I was about to explain the other reason why the amendment is not appropriate, even if he interprets it differently. It would be operationally impractical if, as I believe he is saying, an inspector could exercise the power to enter and remain on premises only during a single month, or only during any other time scale that the hon. Gentleman might want to identify. An investigation might be conducted over only a couple of weeks, but a very complex investigation might well need to be conducted for very much longer than a month and will comprise a variety of activities, not all of which will involve full-time or regular contact with the company.

Such an investigation might involve visits to the company, obtaining information from elsewhere and then having to return to the company. By constraining the ability to investigate within one month, we would, in effect, make it impossible for the company investigators to carry out their tasks, given the complexity of some investigations.

Mr Andrew Mitchell (Shadow Minister, Economic Affairs; Sutton Coldfield, Conservative)

The Minister is missing the point. Of course an investigation might take more than a month, but the issue is whether the inspector shall stay on premises, which might be domestic, for longer than that period without thinking it through and without justifying his actions very carefully. The investigation might take longer than one month, but the issue involves whether it is accurate to suggest that the inspector needs to sit in a domestic home for more than one month in pursuit of that investigation. I submit that it is not.

Ms Jacqui Smith (Minister of State (Industry and the Regions and Deputy Minister for Women), Department of Trade and Industry; Redditch, Labour)

An investigator would not, as the hon. Gentleman says, sit in a domestic home for a month. That, clearly, would not fulfil the criteria of entering the premises at reasonable times or remaining there over a reasonable period. However, the investigator might well need to visit certain premises—including a director's home, for example—and have to return several months later, perhaps because it had come to light that there might be other information or that other documents could be obtained on those premises.

I repeat my concern that what he is trying to do would be impracticable and would limit the ability to carry out an investigation.

Before I finish, however, I hope that I can make the hon. Gentleman happy.

On amendment No. 34, he suggested that he might have spotted a lacuna in new section 449 in that it does not protect information acquired by a person accompanying an investigator. In our view, that would be a rare event, but I would like to consider the situation that he has outlined, and I might well be prepared, if necessary, to table an amendment on Report.

I am extremely grateful to the hon. Gentleman for having brought the matter to the Government's attention. In that spirit of compromise, I hope he will withdraw his amendment.

Mr Andrew Mitchell (Shadow Minister, Economic Affairs; Sutton Coldfield, Conservative)

I am, although Hansard cannot record it, visibly moved, not least because the Minister has shot my fox.

As members of the Committee will recall, I negotiated with the Clerk as to how to force a Division on my amendment. The Clerk, as ever, explained that, for technical reasons, I would have to force a Division on amendment No. 18 before forcing a Division on amendment No. 34. I was about to start my remarks by telling the Minister that I wanted to divide the Committee on the amendment; it is so reasonable that it is inconceivable that the Government Whip would permit her not to instruct her Back Benchers to support it. Now she has said that she finds it helpful and has suggested that she might allow me to re-table it on Report so that she can accept it. I shall not press it to a vote today.

Serious matters are involved today, and the Minister must have listened with great care—as the Government Whip certainly did—to the wise words of the hon. Member for Stoke-on-Trent, Central. The hon. Gentleman has been a Minister; he has been in govt, as have you and I, Mr. Conway, and he knows that what he said is correct. In legislation one cannot rely on the self-evident reasonableness of one Minister; legislation must be made fireproof against abuse, which may come in many forms. Although I saw 14 DTI and Home Office officials around the Room stiffen and thrust a piece of paper towards the Minister—

Mr Derek Conway (Old Bexley & Sidcup, Conservative)

Order. I dislike interrupting hon. Members in full flow, but this is the second time that the hon. Gentleman has referred to those people. I do not see anybody else in the Room but members of the Committee; nor does he.

Mr Andrew Mitchell (Shadow Minister, Economic Affairs; Sutton Coldfield, Conservative)

I am grateful to you, Mr. Conway, for keeping me on the straight and narrow. Any official advice that might be given to the Minister in respect of the words of the hon. Member for Stoke-on-Trent, Central is bound to say, ''Resist'' or, ''Beware of an apparent agreement between Sutton Coldfield and

Stoke-on-Trent''. None the less, the hon. Gentleman is correct: Members of Parliament should be enormously careful about granting open-ended powers in such areas.

The Minister makes great play of the fact that the Secretary of State will have to authorise such an investigation, but it is extremely likely that almost every time the Secretary of State is asked to authorise, he or she will do so. If I remember rightly the comments made in the other place, the Minister there conceded that that was virtually certain to be the case.

The provisions that we seek to pass into law today mean that someone will not be told why they are being investigated, because the Minister resisted those amendments. Officials will not have a greater burden of certainty imposed on them before they make their inquiries, because those amendments have been rejected. Officials will be able to stay as long as they like—one can imagine officialdom sitting with folded arms, saying, ''Until you tell me what I want to know, I'm not going to move.'' I sought to win the Minister's support by mentioning the domestic circumstances into which an official might enter. The threat that an official could stay for a long time, putting undue pressure on a director being investigated, is real.

The Minister said blithely that we must not be in the business of imposing too many limitations on the powers, but I simply want to impose some limitations on those powers. It is our constituents who will be investigated by an over-mighty bureaucracy and investigatory regime, and that is wrong.

I shall withdraw my amendment, but I give notice to the Minister that I want to test the view of the House of Commons on Report to see whether the majority of our colleagues believe that the powers as drafted are excessive and go beyond what Parliament should permit of investigators in pursuit of our constituents, that the powers are unbalanced, and that they need to be amended. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 21 ordered to stand part of the Bill.

Clauses 22 and 23 ordered to stand part of the Bill.

Schedule 2 agreed to.