Clause 186 - Exercise of powers by authorised person

Enterprise Bill – in a Public Bill Committee at 6:00 pm on 23 April 2002.

Alert me about debates like this

Question proposed, That the clause stand part of the Bill.

Photo of Jonathan Djanogly Jonathan Djanogly Conservative, Huntingdon

This clause ties in with clause 185(4), which deals with people who are authorised in a warrant to accompany the named officer who is executing the warrant. I would be interested to hear a little more about how the clause will work in practice and what its purpose is. I know that, under clause 194, the same type of power will be provided in respect of warrants issued under the Competition Act 1998. However, I would be interested to know whether there are any previous examples of such a provision in legislation, and whether any common-law cases have led to the need for the provision. More specifically, could the authorised persons be contracted-out specialists, and if so, will they come from the private or public sectors?

Photo of Miss Melanie Johnson Miss Melanie Johnson Parliamentary Under-Secretary, Department of Trade and Industry

We do not envisage that the power that the clause gives the OFT will be used regularly, but it is important because it allows the OFT to

involve experts from other agencies and institutions who might be involved in a cartel investigation or aspects of that investigation. Experts might be needed if the offence is committed in a specialised market or involves specialised knowledge on behalf of the investigator, such as specialised financial accountancy or information technology expertise.

Photo of Jonathan Djanogly Jonathan Djanogly Conservative, Huntingdon

I would be appreciative if the Under-Secretary defined the use of the word ''institutions''. Would they be purely public sector institutions, or could they be private?

Photo of Miss Melanie Johnson Miss Melanie Johnson Parliamentary Under-Secretary, Department of Trade and Industry

They would be any institution that can provide expertise under an arrangement with the OFT under the powers. However, I expect that it would often be public sector organisations that would have that expertise.

The clause also allows the OFT to involve officers from the Serious Fraud Office who could aid an investigation. An important safeguard in the clause is that no person is bound to comply unless the authorised person, whoever he or she may be, can produce evidence of his or her authority. In fact, the OFT has said that it would always expect such persons to be from public bodies.

Photo of Mark Field Mark Field Conservative, Cities of London and Westminster

I am slightly concerned about the practical reality. In the early days of the legislation coming into play, it is likely, given the climate of cartel-busting in Europe, that the OFT will be stretched and will have an enormous number of tasks ahead of it. It is possible that as a result it may wish to hive off some of its work to private-practice law firms, for example, which would do some of the basic investigation. Would such an employee be a ''competent person'' for the purposes of the clause, even if he or she were not a public sector official? I should be interested in some guidance on how that will work, given the difficulties that the OFT may face.

Photo of Miss Melanie Johnson Miss Melanie Johnson Parliamentary Under-Secretary, Department of Trade and Industry

My understanding is that such an employee could be a ''competent person'' under certain circumstances, but people's exact backgrounds will not make any difference, because they will all work under OFT control and will be subject to all the safeguards associated with the powers of investigation. As is often the case, someone working for the OFT under such conditions will, to all intents and purposes and in terms of the requirements placed on them, be part of the OFT. That safeguard is in place.

Photo of Jonathan Djanogly Jonathan Djanogly Conservative, Huntingdon

With respect, there is a big difference between the public and private sectors, not least in conflicts of interest or previous knowledge. For instance, if a private investigator or institution were used, we would have to ask who they worked for previously as there might be conflicts of interest.

Photo of Miss Melanie Johnson Miss Melanie Johnson Parliamentary Under-Secretary, Department of Trade and Industry

Clearly, it would be unsatisfactory for a conflict of interests to arise. The competition authorities always have to consider who is involved in a matter and whether there are conflicts of interests, as is the case in other fields of life.

Question put and agreed to.

Clause 186 ordered to stand part of the Bill.