Enterprise Bill

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The Chairman: Would the hon. Gentleman limit his intervention? It is becoming a speech.

Huw Irranca-Davies: I apologise, Mr. Beard. The Consumer Association said that super complaints

    ''will concern situations where markets rather than the activities of particular companies fail to work for consumers''.

Subsection (7) gives protection in such situations.

Mr. Field: I hope that future super interventions will be limited to 90 minutes. In fairness to the hon. Member for Ogmore (Mr. Irranca-Davies), I acknowledge his concern. I am trying to discover what type of information will be brought into play during the first period. There is concern that some industries may find themselves under great media fire for high pricing or the way in which they market their products, and the longer the preliminary period, the more we will allow damaging allegations to be made in the public domain.

It is important to ensure that the OFT can investigate only a limited list of infractions within that period. There should be no risk of it examining a considerable amount of documentary evidence and, in effect, taking part in a fishing expedition that will allow it to clamp down even harder. I hope that the Minister will give us some guidance about the operation of the OFT.

The Parliamentary Under-Secretary of State for Trade and Industry (Miss Melanie Johnson): I am grateful to hon. Members for their thoughtful consideration of the clause and amendments, and for raising such useful issues.

I am glad that there is general support for a deadline. I emphasise that it is a deadline by which the OFT should investigate initial super complaints, not a target. The amendment would shorten that period to 60 days. It is also important to stress that the OFT will be required to give a full and reasoned response to super complaints. As Government Members and the hon. Member for Orkney and Shetland said, it is likely that the quality of that response would be undermined if the OFT did not have enough time to analyse the evidence submitted by the super complainant. I am grateful for the hon. Gentleman's comparison with the timetables for prosecutions in Scotland, which was based on his experience.

The complexity of the issues may slow the process down, but it is important that sufficient time is taken to give a substantive answer. As the hon. Member for Huntingdon said—he is not here at the moment—super complaints are a route into the system for the consumer. They are not part of the system that will still operate. If the OFT accepts a super complaint, it will go through the usual processes. I will discuss later the basis on which the OFT will accept a complaint.

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The deadline of 90 days is the right one to give the OFT in such cases. It would not be wise to make cases subject to a tighter time limit at this stage. There are good reasons for that, as my hon. Friend the Member for Ogmore said. However, if it proves to be the case in the light of subsequent experience that super complaints can be investigated properly in a shorter time scale, subsection (4) allows the Secretary of State to vary the statutory deadline, as hon. Members pointed out.

Mr. Waterson: Surely the Under-Secretary is not saying that under subsection (4) the Secretary of State's powers can be used to change the time in individual cases. I understand the subsection to mean that the Secretary of State's powers can be used to change only the general time limit.

Miss Johnson: Absolutely. I am sorry if I gave rise to any confusion in the hon. Gentleman's mind. I was not implying that the powers related to any specific inquiry, but that they would be based on the experience of how things might work across the board.

There will be a process for designating bodies, the criteria for which will be developed, discussed and consulted on. Designated bodies will be expected to submit a reasoned case in support of their complaint in accordance with the OFT's guidance, which I will come on to later. The consumer body would have to submit considerable resources to produce such a case, so they are unlikely to make frivolous complaints. I urge all Committee members not to assume bad faith on the part of too many people who go through these processes. We expect people to do their best and to want to be seen to be doing their best. In return, they expect their complaints to be treated with the utmost seriousness.

In some cases, rushing to complete a response within 60 days would be detrimental to all parties concerned. A shorter time scale will mean that more cases are likely to require further investigation to ensure that the OFT can make a fully informed decision about what action, if any, may be necessary in response. If the intention of the amendment is to make life easier for firms whose activities might be the subject of a super complaint, which several hon. Members have suggested, it is unlikely to succeed. If there is a case to answer, businesses will need time to respond just as the OFT will need time to complete its analysis. This is a fair time limit for both parties. It is not overgenerous, but I do not believe that we should shorten it now.

Amendment No. 25 seeks to prevent the Secretary of State from altering the time period within which the OFT must respond. As I have said, we intend to enable the Secretary of State to change that time period if experience shows that 90 days is either too lax or too limiting. It could go either way. I hope that we will not find that it is insufficient. But if it were insufficient and perhaps business argued that it was, we might want to alter it. There is always an assumption that it is in someone else's interests. I remind the hon. Member for Eastbourne of his remarks on Tuesday when he said that fair trading was good business, which I believe was a quotation from some of his earlier handiwork on

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the subject. Fair trading is good for business and it is good for consumers. The two go hand in hand.

It is important to retain flexibility within the super complaint procedure. After the OFT has looked at several complaints we will be able to see how the procedure is working. We want to keep the whole procedure as flexible as possible so that it can be adapted in light of experience to ensure that super complaints are dealt with in the most effective way. I am sure that we will come on to resourcing more specifically, and it has been mentioned on a number of occasions, but I can assure the Committee that the resourcing will be there to enable the OFT to do a good job. I therefore do not support the amendments.

Turning to the nature of the process, as I have said, there will have to be a reasoned case for the complaint. The OFT will not take further action as a consequence of super complaints that are not well reasoned. The OFT must issue guidance about how those bodies present a reasoned case for complaint.

Mr. Djanogly: I am pleased to hear that, but the Bill does not seem to give the OFT any choice. It states:

    ''The OFT must, within 90 days after the day on which it receives the complaint''.

Will the Government propose an amendment to that?

Miss Johnson: I regret that I do not entirely follow the hon. Gentleman's question.

Mr. Djanogly: I shall explain. The Minister said that the OFT would not have to consider frivolous complaints made to it.

Miss Johnson: Further consider.

Mr. Djanogly: So it will have to consider everything.

Miss Johnson: I assume, for the sake of argument, that if an utterly frivolous super complaint were submitted, the OFT could rapidly decide that it did not meet the criteria and dismiss it well within the 90-day time limit. Obviously we do not anticipate that such an event will occur because the reputation of organisations designated to bring forward super complaints will itself be on the line in the way in which they deal with those matters. That will be under the public gaze.

Mr. Waterson: The Under-Secretary made the point that the OFT will produce guidance on how the system will work. I do not know whether there is any draft guidance floating around that we could get our teeth into. Can she deal with the issue that I raised in an intervention? What hurdle do these complaints have to get over to be pursued? Is it just a good, arguable case? Is it a prima facie case? It is lower or higher than either of those? Those are established tests within the existing legal framework, so surely the OFT must give some guidance to complainants about what level of proof they must produce.

Miss Johnson: The requirement is that the OFT will issue guidance about how bodies must present a reasoned case for the complaint. The hon. Gentleman referred to criteria used for legal cases, but this is not a legal case as such. The OFT will publish guidance on what it expects a super complaint

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to include; for example, how the presentation of a reasoned case should be made.

10.15 am

Mr. Djanogly: On that specific point, will the OFT be able to have a relationship with the relevant consumer body, outside the course of the investigation? A complaint is likely to arise following a campaign, for example by Which? magazine. It is highly unlikely that a consumer body will wake up one day and decide that it will make a complaint about dentists. It is more likely that, after complaints have been made, a newspaper will run a campaign to tell people to which dentist they should go. Will the consumer body be able to approach the OFT before the complaint is made to discuss whether a complaint would be acceptable, or will the relationship be at arm's length, with the body unable to talk to the OFT until the complaint is made?

Miss Johnson: We do not want to set out the criteria for informal discussions, but need to keep them flexible. Obviously the OFT is used to having discussions with consumer bodies because it operates in a related field, so we do not envisage either fixed contact or no contact at all. At the end of the day, the OFT will consider whether there are reasoned cases, and any unsubstantiated or ill-thought-out complaints will not be followed up after initial consideration.

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