Clause 185 - Power to enter premises under a warrant

Enterprise Bill – in a Public Bill Committee am 6:00 pm ar 23 Ebrill 2002.

Danfonwch hysbysiad imi am ddadleuon fel hyn

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

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

I have a few concerns about the clause, and I return unapologetically to the point that I made on Second Reading. I draw the Committee's attention to clause 185(5)(b), which defines ''Court'' in Scotland as the High Court of Justiciary. It seems bizarre that only the High Court of Justiciary is to issue a warrant in Scotland. Is the wording of the clause influenced by the fact that the High Court in England and Wales and the High Court in Northern Ireland are to be given the power to grant warrants? I understand from my consultants in English criminal law and procedure, the hon. Members for Huntingdon and for Cities of London and Westminster (Mr. Field), that the High Court in England is a court of civil

jurisdiction. The High Court of Justiciary is clearly a different sort of beast; it is an exclusively criminal jurisdiction.

As the normal procedure in the investigation of all offences is to give the power to seek a warrant to the procurator fiscal, who then goes to the sheriff court to obtain a warrant for investigation, at the very least I should think it appropriate for the warrant to be obtained from the sheriff court as well as the High Court. Given that there are some 22 senators of the College of Justice—judges in the High Court in Scotland—there is no need to burden them in the way proposed. I do not see why, either, the procurator fiscal should not be given the power to seek the warrant. I cannot think of another instance, with the possible exception of a few customs and excise offences, in which the procurator fiscal is not given the power to seek a warrant. I should be grateful if the Under-Secretary explained why the clause is so worded. It serves to reinforce my suspicion that the drafting of the Bill does not take sufficient account of separate Scots law and criminal procedure.

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon

I should like to touch on a couple of errors. The first relates to the status of the documents that may be seized or handed over under subsection (1). If they are handed over or seized in respect of a criminal investigation, can they then be used for civil proceedings as well? If a company were willingly to give the OFT confidential information as part of a civil investigation relating to what turns out to be a criminal offence, or for any other reason—perhaps as a market-testing expedition—could that information be used in the criminal trial?

My other question relates to the fact that in subsection (2)(b) and (c) the documents are referred to as of the ''relevant kind'', but in paragraph (d), which deals with electronic mail, the information concerns

''relates to any matter relevant to the investigation''.

So, a different formula of words is used for what seems to be the same thing. I would be interested to hear from the Under-Secretary whether there is any particular reason for that.

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

As the hon. Member for Orkney and Shetland knows, the Bill proposes that warrants should be granted by the High Courts in England and Wales and in Northern Ireland and by the High Court of Justiciary in Scotland. The objective is to ensure the right level of scrutiny. I hear what has been said about it being the usual business of sheriffs in Scotland to grant warrants for criminal investigations into even the most serious offences. I am grateful for the comments that have been made, and I will consider whether we should revise the clause in that respect. However, I assure the hon. Gentleman that we have liaised extensively with Scottish legal experts and taken their advice.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

Is the Under-Secretary telling the Committee that the Crown Office was consulted and pronounced itself satisfied with the High Court of Justiciary having a warrant-granting power, because I have information to the contrary?

Miss Johnson: I can only be advised on the matter, but that advice is that the Crown Office was consulted and was content.

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

We do not normally make such information available, but I can take further advice on the details of the matter, and I assure the hon. Gentleman that that is the advice that I received.

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

Is that advice in writing, and could it be made available for Thursday's sitting, so that we could all be satisfied on the matter?

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

I do not see any reason why hon. Members are taking this line. I have said that I am grateful for the comments that have been made and will consider whether we should revise the clause. We can make a mountain out of a molehill, if Opposition Members wish, but it is not normal to share policy advice.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

I merely want to make clear my concern, which I have already expressed on several occasions, that the Bill takes insufficient account of Scots law and procedure. That is my sole reason for wanting that information to be put in the public domain.

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

I am listening to the hon. Gentleman, and I am aware of his concerns, which have been noted. For that reason, I am saying that we will consider whether any revision of the clause is necessary. This debate is getting us no further, because we are all reporting what has been said to us about how the arrangements work. I want to turn to the point raised about information collected under the criminal powers. If information is so collected, it can be used for civil investigations, if it has been properly obtained. So, the answer to that question is yes.

Question put and agreed to.

Clause 185 ordered to stand part of the Bill.