I beg to move amendment No. 96, in page 133, line 2, leave out
'or any other person who it has reason to believe has relevant information',
'past and present employees of the business of which the person under investigation is an officer or employee'.
With this it will be convenient to take the following amendments: No. 97, in page 133, line 17, at end insert—
'(5) A notice under subsection (1) must indicate the subject matter and purpose of the investigation'.
No. 98, in page 133, line 17, at end insert—
'(6) Any person of whom information is sought pursuant to this section shall not be required to provide such information, if the provision of that information would infringe the right to silence and/or the right against self-incrimination'.
No. 99, in page 133, line 17, at end insert—
'(7) Any person of whom information is sought pursuant to this section shall be entitled to have a lawyer of his choice present at all times throughout the investigation, and the OFT shall be required to advise'.
No. 101, in clause 185, page 134, line 9, at end insert—
'(3A) Any person of whom information is sought pursuant to this section shall not be required to provide such information, if the provision of that information would infringe the right to silence and/or the right against self-incrimination.'.
No. 103, in page 134, line 9, at end insert—
'(3C) Any person of whom information is sought pursuant to this section shall be entitled to have a lawyer of his choice present at all times throughout the investigation, and the OFT shall be required to advise.'.
No. 105, in clause 186, page 134, line 30, at end insert—
'(4) Any person of whom information is sought pursuant to this section shall not be required to provide such information, if the provision of that information would infringe the right to silence and/or the right against self-incrimination.'.
No. 106, in page 134, line 30, at end insert—
'(5) Any person of whom information is sought pursuant to this section shall be entitled to have a lawyer of his choice present at all times throughout the investigation, and the OFT shall be required to advise.'.
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.
I hope that the hon. Gentleman does elaborate the point a little more because I fail entirely to understand his reasoning. At the moment, I am dealing with a case where a large number of people have alleged that a company is unfit to trade on a wide variety of matters, most of the evidence for which comes from customers and others who have been—one is tempted to say—the victims of its activity. Although there is corroborating evidence from employees—to cite amendment No. 96—it would not be of much use without other evidence from those who are not employees. Equally, I think similar activities, and amendment No. 99, would have the effect of frightening off people from allowing their perception of what has happened to have any real effective airing.
I am grateful for that intervention, but I cannot be as helpful as I would wish in response as I do not know on what basis the company was said to be unfit to trade.
We must be careful about allowing the cartel offence, which will be a serious offence with major criminal sanctions attached, to be misused to attack a company for which other remedies are already available. It may be that the company is unfit to trade because its goods are not merchantable or they never appear, or that it is overcharging for them or using abusive selling methods. Is the hon. Gentleman saying that unless there is prima facie evidence of that company being involved in a cartel—I am happy to give way if the hon. Gentleman can confirm or deny that—
investigation. Our drafting would not necessarily obviate past or present employers from blowing the whistle in the first place, but I am happy to reconsider that.
In amendments Nos. 101, 102 and 105, we are talking about the provision of the right to silence, the right against self-incrimination and the obligation on the OFT to advise people, who are being investigated, of their rights. Amendments Nos. 103 and 106 refer to the entitlement to have a lawyer present. None of the amendments would do anything that would solidly fix the clause into criminal law and procedure. It is up to the Government to accept the proposition for which we have been arguing for what seems like most of our lives but has in fact been only a few hours: it is distracting and ineffective to introduce criminal sanctions.
During the stand part debate on clause 179, I said that one problem is that if one raises the ante by increasing the burden of proof and introducing criminal sanctions, many things will follow. The amendments are perfect examples of that. The Under-Secretary has an uphill task in arguing against them, because they are absolutely what is required under English criminal law and, I suspect, Scottish law. She has a difficult task in arguing that what the amendments cover should not be available in a given situation. What would be the reason for it? People can still end up in prison. Someone who has stolen a car and someone who has been convicted of a telephone theft could still share a cell in the same prison—perhaps they would not be in the same prison, but they would still be in prison, and would be entitled to all the defences, burdens of proof and everything else. That applies as much to someone who is alleged to have stolen a car as to someone who is alleged to have murdered somebody. It is therefore absolutely essential to include safeguards. I would be amazed if the Government disagree.
I must not have made my point sufficiently clearly to the hon. Gentleman, so I rise to consolidate the point more accurately.
I simply do not agree that, during an investigation under any other aspect of criminal law, lawyers are present throughout. That is clearly not the case. Police conduct investigations by sifting witnesses and taking statements from people who allege certain things. Out of that, comes a prosecution case, at which point lawyers become involved. To have lawyers present throughout the investigation would, I repeat, intimidate some people who may have valuable things to contribute. They might be talked out of vouchsafing information if lawyers were always present. In that light, I hope that the hon. Gentleman will reflect that the amendments would not do what he thinks they would.
I am for the main part content to support the bulk of the amendments. However, one that gives me cause for pause is No. 96. It appears to be overly restrictive in terms of the class of people that it would cover. As I understand it, it would not allow the OFT, for example, to question an employee of a business other than the business with which the person under investigation was associated. It is of the essence
that there have to be two parties to such an agreement, and it would be sensible to allow the OFT to question employees of both businesses in relation to the person under investigation.
I should have thought it axiomatic in cartel investigations that it would take two to tango, and at least two companies would probably be investigated. With respect, the practical problem suggested by the hon. Gentleman would not arise because both companies, or perhaps a range of companies, would be under investigation. To take the example of bus companies, both of them would be under investigation and there would be no bar on talking to all their past and present employees.
That would probably be the case, but one can envisage scenarios in which it would not necessarily be the case. Indeed, the hon. Gentleman's proposed wording would restrict the investigation to a point beyond which it could not be the case, which would be undesirable. I share his concerns, however, about self-incrimination and the right to silence, and from that point of view the rest of his arguments are entirely sensible.
Amendment No. 97 seems to be an entirely sensible suggestion. It would make the scope of both the documents recovered and the investigation conducted at the time much clearer when they came to be examined in court. Whether evidence recovered is admissible in court would also be easily identifiable because it would have been recovered in a fair and transparent way.
Amendments Nos. 98 and 99 are also sensible. I cannot see how we can possibly hope to have legislation that is human rights-proof without a provision such as amendment No. 98. If it is not accepted, will the Under-Secretary tell us whether a person under investigation could acceptably answer a question by simply saying, ''No comment''? We have to be told about that before we can be persuaded that such an amendment is not necessary.
On amendment No. 99, access to legal advice and counsel throughout the course of any interview or disclosure process seems to be very sensible. With respect to the hon. Member for Hemel Hempstead (Mr. McWalter), that is not that alien to current criminal procedures. My understanding is that in England one's entitlement to access to legal advice at the point of questioning is quite strong. Since the implementation of the Scotland Act 1998 and the Human Rights Act in Scotland, there has been greater access to legal advice when, for example, people are questioned in a police station. I should have thought that that is exactly the sort of thing that the Government would have wanted to see in the Bill. At the moment, I find myself in a kind of bizarre wonderland—
The hon. Gentleman says that one should be entitled to a lawyer throughout questioning, and I am perfectly happy with that. However, amendment No. 99 states that one should be entitled to have a lawyer present ''throughout the investigation''. An awful lot of investigating takes place before people arrive at the stage of being questioned.
That is a fair point. The amendment, however imperfectly framed, would give an entitlement that is not in the Bill at present, and that is, I think, very important. The final phrase of amendment No. 99, that
''the OFT shall be required to advise'',
provides something akin to a caution prior to questioning. There is nothing in the Bill that approximates to that.
It appears to me that the Government should take the clause away and examine it carefully, looking at how properly human rights-proof it could be. I am not up to speed on the full, most up-to-date case law on self-incriminations, subsequent to the Human Rights Act, but it is not that long since the giving of information under section 172 of the Road Traffic Act 1988—which requires a person suspected of driving a car at the relevant place and time to state whether he or she was the driver, and if not, who he or she believed the driver to be—was held to be incompatible with Scots law. That was subsequently overturned by the Privy Council, but my understanding and recollection—the Under-Secretary's advisers will have better knowledge of this—is that that was done on a narrow administrative basis. What we are talking about here concerns the fullest powers of investigation and could not in any sense be described as a narrow administrative point.
I have a couple of minor points to make, although I must confess that I do not share the encyclopaedic knowledge of Scots law that the hon. Gentleman has.
I suspect that I can indeed count myself lucky in that regard, especially on St. George's day, when we should all be proud.
I accept that, under clause 187, we shall discuss one or two safeguards that have been put into place for would-be defendants in this regard, and I understand the Government's desire to make clause 184 work. Clearly, we want to avoid the risk of documentary evidence being shredded, or the tipping off of individuals in advance of an OFT inquiry. I understand that some aspects of the clause give the OFT powers in that regard.
Does my hon. Friend agree that all the problems that we are discussing would fall away if the Bill did not include criminal sanctions for the cartel offence in clause 179? None of these problems would arise were that simply a civil matter.
Mr. Field: That is of course entirely true, but sadly the votes on clause 179 have been lost so we must move ahead on the basis that there will be criminal sanctions, which have such commensurate and contingent problems.
It seems sensible to include certain safeguards in the Bill. Even if the Under-Secretary assures us that the powers currently in clause 184 will not be exercised in the draconian way that several Opposition Members have painted, I have great concerns about those powers. It would make sense to have safeguards, and those suggested in the amendments are only right and sensible, given the increasing importance of human rights legislation in the UK and from Europe.
I should like to comment generally and then on the specific amendments, Nos. 96 and 97. There is a general concern that liability in the Bill as drafted is fairly vague but that penalties are highly specific. There is the possibility of serious criminal offences, but not the availability of the normal defences for people charged with them. Although the amendments might swing too far in the other direction in some respects, which was the point made by the hon. Member for Hemel Hempstead, there is real concern and a necessity for the Minister to respond to that in some way.
I slightly disagree with my hon. Friend the Member for Orkney and Shetland on amendments Nos. 96 and 97. He found fault in the revision, but I think that there is scope for revision. My concern is that the phrase ''or any other person'' is far too vague. That ''any other person'' may well be a supplier. According to clause 192, if people do not co-operate they run the risk of six months in jail.
Rather more disturbingly, if that ''any other person'' recklessly makes a false statement, they run the risk of two years in jail. There probably is not a person in the Room who has not at some time recklessly made a false statement. The clause says not ''knowingly'' but ''recklessly''. I wonder whether all those people investigated, who may not be the people directly in the frame, would be aware of that. We are reaching a point where it may not be simply a case of warning people being charged that anything may be taken down in evidence and used against them, but also anyone who appears as a witness in that context.
My second concern regarding amendment No. 97 takes issue with the vagueness of the demands for documentation. The clause says:
''to produce, at a specified place and either at a specified time or forthwith, specified documents, or documents of a specified description, which appear to the OFT to relate to any matter relevant to the investigation.''
I am not concerned about the OFT asking for details and information that would be kept normally and demanded by company law, VAT inspectors and so on. However, if it is left completely open, there might be someone—perhaps through non-culpable carelessness—who loses a document that the OFT has demanded. People under investigation may not have a document, or may have disposed of it quite
innocently because they might not be very sophisticated.
If a document is not available for whatever reason, subsection (4) states that the person who does not have the document must explain where it is. Of course, the implication would be that they had lost, or worse still, destroyed the document. Later elements of the legislation state that they must prove that they have not destroyed the document. Those concerns make the case for tightening the clause so that the people in the frame are those who deliberately and malevolently form cartels on an anti-competitive basis. People who have simply been less than adequate book-keepers should not get caught in the net.
I wonder whether breaches of party manifestos will come within the scope of the new consumer law.
It is easy to assume that the legislation will just get the bad guys, but the reality is that when the OFT mounts an investigation, for every person from whom it obtains information, it will see a dozen who have had nothing to do with the cartel. Even if they did, they were probably involved in a company operating a cartel without their knowledge. The vast majority of people will be innocent of any crime.
Has the hon. Gentleman heard the phrase, ''We are trying to eliminate people from our inquiry''? That is a time-honoured way of going about such matters. We sometimes need to see people in all sorts of circumstances, simply to eliminate them from the inquiry. He speaks as if there is no body of experience or law that already covers much of the investigative process that we are debating. It is essentially about protecting those who may not be involved.
I resent that last remark. It was an outrageous thing to say in the context of a debate on the rights of people who are subject to investigation. I have not heard anything in the debate so far that one could call obfuscation.
However, the hon. Member for Wolverhampton, North-East (Mr. Purchase) has a point, which he did not specifically express. Amendment No. 96 is different from the others, as hon. Members have said. It deals with who can actually be investigated, whereas the other amendments deal with what happens when someone is investigated. That is an important point, because the issues are very different. To that extent, I believe that the grouping of the amendments was probably slightly confused.
I have been speaking about innocent people who are caught up in an investigation. I have seen that at first-hand, and it is distressing, even for people have nothing to fear because they are not guilty. Everyone has rights—even those who are guilty—throughout the investigation, and the hon. Gentleman must appreciate that important point. I shall stop there, but I certainly support the amendments.
Frankly, the group of amendments is something of a curate's egg. I hope to explain to Opposition Members why I believe that. I hope also to persuade them that perhaps they have been making somewhat heavy weather of some of the issues, although I agree that there are some important considerations.
Amendment No. 96 would restrict the power to past and present employees of the business under investigation. We believe that such a restriction would place far too serious a limit on an investigation. It is not clear why Opposition Members think that it would be such a good idea. As some hon. Members have pointed out, the information that is relevant to the investigation may be held by undertakings or individuals who are not, and never have been, connected to the business of the person under investigation. Such a restriction could also lead to difficult questions as to who constitutes an employee or an ex-employee of a relevant business. For example, are agency staff or contractors to be included in the definition? For those reasons, such a restriction would make effective investigation very difficult.
, I accept the Under-Secretary's point. However, if some of those marginal people are interviewed by the OFT, they are subject to the same severity of punishment as anyone else if they make a false or inadvertently false statement. Is there a procedure whereby they might be warned of the significance of what they are saying? They may have had only a temporary connection with the company concerned.
Perhaps I can come back to that point in a moment.
The OFT needs the freedom to pursue any investigation in the most effective way. It should not be restricted from the outset with regard to those whom it may ask to produce relevant information or to answer questions relevant to the investigation. I understand that the hon. Gentleman is interested in the situation of people who are drawn into the investigation to provide information that is or might be relevant.
Indeed. That would almost certainly be the case. I urge the Committee to resist the amendment. It is not at all helpful as it would make investigations much more difficult.
Amendment No. 97 is designed to add a requirement for the OFT, when investigating under a written notice, to indicate with that notice the subject matter and purpose of the investigation. It would add a safeguard providing any person under investigation with certainty of the grounds on which they are being investigated. The OFT is already required to state the purpose and subject matter of a investigation on any notice it issues under its powers to investigate civil offences. We welcome the extra safeguard and agree to consider how most appropriately to add it to the provisions. If, when the time comes, the amendment is withdrawn, I will undertake to consider the matter further and how to proceed in the most appropriate manner.
Amendments Nos. 98, 99, 101, 103, 105 and 106 are designed to provide the right to silence, the right against self-incrimination and the right to legal representation to persons being investigated for the cartel offence. Such safeguards are indeed proper and necessary where evidence given by someone under investigation may later be used as evidence in court against them. OFT officers investigating a criminal offence will have regard to the codes of practice for criminal investigations in England and Wales, as provided in the Police and Criminal Evidence Act 1984. I will talk about the position in Scotland in a moment.
Section 67(9) of PACE states:
''Persons other than police officers who are charged with the duty of investigating offences or charging offenders shall in the discharge of that duty have regard to any relevant provision of such a code.''
OFT and SFO investigators are
''persons other than police officers''
for the purposes of undertaking criminal investigations. The purpose of PACE is to protect suspects where investigators are trying to obtain evidence that can be used against them.
Where OFT investigators are seeking voluntary statements from those under investigation, they will be subject not only to the safeguards that the amendments are designed to introduce but to all the other requirements of PACE such those governing the granting of breaks, embassy access and the meeting of religious needs.
I am assuming that any investigation would have to be conducted according to the codes of practice for criminal investigations, just as any other similar investigation would—that is under the voluntary arrangements, when information is given voluntarily. Where OFT investigators seek information under compulsion using the powers conferred by clauses 184 to 186, PACE does not apply.
However, clause 188 does provide protection against self-incrimination. In other words, any information obtained under compulsion cannot be used against the person who made it in court, except in very limited circumstances. That safeguard mirrors
that provided to persons subject to a fraud investigation using powers conferred on the SFO by section 2 of the Criminal Justice Act 1987.
A suspect has no right to have a lawyer present when being interviewed under compulsory powers. However, in the interests of fairness and unless it would unduly delay or obstruct the investigation, the SFO would advise persons under investigation that they might wish to seek legal representation, and the OFT will follow SFO practice in that respect. I hope that that explains the situation for England and Wales.
In the case of suspects being cautioned in Scotland, PACE does not apply. When the OFT is seeking voluntary statements from suspects in Scotland, it will nevertheless give a caution in line with normal practice under Scots common law. Omitting to give a common-law caution before questioning a suspect would place the admissibility of the evidence in doubt. As I said earlier, the Crown Office will be providing training in Scots law and practice to OFT investigators. When the OFT is seeking information from suspects in Scotland using its compulsory powers, clause 188 will have effect. As I explained a moment ago, that clause restricts the use to which the information provided under compulsion can be put in court.
The provisions as they stand seem to make it particularly difficult for the prosecution rather than for the defence. We accept that questions can be asked during an investigation of someone who, it subsequently becomes apparent, should be charged but it is quite inconceivable that, if powers of compulsion have been used, they cannot—or so the Minister tells us. I suggest that there might be some merit in the Law Society of Scotland's briefing, which suggests that there should be a measure of prior judicial oversight to protect the position of all parties in that respect.
As I have said before, the powers of investigation conferred on the OFT under the Bill are entirely necessary and proportionate for the detection and successful prosecution of offences. The hon. Gentleman is making a point. I had hoped to persuade him that we were in entirely the right place; I seem to have persuaded him that we are in the wrong place but for a different reason. I take it that he will not support the amendments on that basis. The powers include the power to require information under notice without the requirement for judicial approval. Those powers are not unique; other enforcement agencies use them in the investigation of similarly serious crime. Indeed, the powers in the Bill have been modelled on the powers conferred on the SFO in the Criminal Justice Act 1987. I have no reason to believe anything other than that they are entirely compatible with the European convention on human rights.
I am sure that the hon. Member for Orkney and Shetland is well aware that there is no absolute right to a solicitor in Scotland. However, Scottish case law has established the principle that if a suspect asks for a solicitor and the investigating officer refuses the request, the refusal can be used as evidence in determining whether the interview was fair. In
practice, the OFT would offer a suspect under Scottish jurisdiction access to legal representation whether or not it was seeking voluntary statements that could be used as evidence against that suspect. For those reasons, I shall take away amendment No. 97 and consider the matter further, but I hope that I have persuaded the hon. Gentleman that he should withdraw the amendment.
I am most grateful to the Minister for her careful explanation. With the possible exception of amendment No. 96, we are extremely wedded to the principles set out in the amendments. We shall read carefully what she had to say. On such things as the right to silence, self-incrimination and legal representation, we want to be absolutely clear that, in this sort of investigation, an accused or a potential accused will have the same rights as any other person under suspicion under any other circumstances. The Minister has gone some way to reassuring us on that, but we shall be taking advice on specific points.
I want to be absolutely clear that, as the Bill stands, evidence that is obtained without those safeguards will be regarded as tainted, that it would never come to a full investigation or that it would be struck out later because the evidence had been obtained without following those procedures, as would be the case in other criminal matters. There should be no difference whatever between the procedures followed to protect the accused in this case and those followed under any other sort of criminal prosecution. We shall reconsider the point. We are grateful to the Minister and we shall seek detailed advice on everything that she has said. If she would like to send us anything to reinforce what she has said, that will be welcome. On that basis, I am happy to withdraw the amendment.