Mr. Waterson: This is an important point, and the Minister is being generous in allowing me to intervene. It is important that we nail down what we are debating.
For the record, I did not say that there should be a two-way power; I was merely inquiring what the logic was, but let us put that on one side and lock it away in its box for the rest of the debate. Surely the Minister has grasped that the political pressure will come when a Minister receives a reference in which the OFT says that it does not think that it is appropriate because of some campaign, Back-Bench pressure, or whatever. Is
Column Number: 442that not the sort of situation that we are trying to get away from?
Mr. Alexander: We should return to the issues under debate, and being investigated by the OFT. By definition, those are issues on which discretion is exercised. There could be circumstances in which highly complex and important matters were under consideration. A reasonable body—the OFT—could reach one conclusion, and the Minister could reach a view that it was necessary to have the matters further investigated. I would make clear the distinction between a decision and a discussion.
Mr. Barnes: I shall not rise to the continuous provocation from the hon. Member for Eastbourne. Is not the reason for the clause quite straightforward? The Bill is entirely different from the Fair Trading Act 1973. Under the 1973 Act it was possible for the Secretary of State to ask for a view from the OFT, and on the basis of that view he could decide whether to go to the Competition Commission. There are no avenues for that in the Bill. Instead, there is a free-standing area for the OFT. With competition policy only, the Government have a fallback provision for exceptional circumstances that could come along—[Interruption.]
The Chairman: Order.
Mr. Alexander: I have a couple of points to make. Of course, the entire scope of the Bill is not fundamentally different from the 1973 Act, many of the provisions of which are drawn and modernised in the Bill. I would concur with the view that one must have regard to the exceptional nature of the circumstances. Although there are complex matters in which discretion may be exercised, it is explicit that it would be an exceptional circumstance if a Minister chose to ask for those complex matters to be further investigated by the Competition Commission. I fear that there is a genuine disagreement about the import and significance of the clause. If the view being offered from the Conservative Benches was that the matter concerns decisions being taken by Ministers as distinct from a request for further investigation by the Competition Commission, I would have more sympathy. However, the provision is important, further strengthens accountability in the overall process and is consistent with the spirit of the Bill.
Huw Irranca-Davies (Ogmore): The arguments of Conservative Members would have validity if there were to be constant challenges to the OFT by the Secretary of State, but they will be rare or very infrequent and on that basis the reserve power seems sensible. It would undermine confidence within the OFT if they became a regular occurrence and I am sure that the Minister will confirm that that will not be the case.
Mr. Alexander: I am certainly happy to give that assurance and I reiterate that, as my hon. Friend said, it would be exceptional for circumstances to demand action by the Secretary of State. I reinforce the point that even under the existing provisions of the Fair Trading Act, Ministers have not sought to act with a cavalier disregard for the position of the OFT or the impact of a referral on business. The provision is sensible and appropriate to ensure that in exceptional
Column Number: 443circumstances—I emphasise exceptional circumstances—Ministers have a power to ask for further investigation.
Mr. Lansley: I remind the Minister that colleagues deflected him in other directions—I understand that—and he has not answered my question. He said that the Secretary of State would decide whether to make a reference on the same criteria. Will that be not only on statutory criteria but on the same guidance that might have been published by the OFT?
Mr. Alexander: Certainly the reference criteria that the Secretary of State will have to satisfy will be the same as for the OFT. However, there are obviously circumstances in which there may be a genuine disagreement about the discretion that must be exercised in reaching a decision on whether to refer.
Mr. McWalter: Does my hon. Friend agree that one of those circumstances might be privileged information? For example, information that is available only to members of the Cabinet or others about foreign countries might have the effect of potentially reconfiguring a market in a way that the OFT might not be aware of. If the Secretary of State took a decision in part on that information, he would not be making it on the same information base as the OFT, which is what the hon. Members for Eastbourne and for South Cambridgeshire keep insisting on. There could be a differential in information.
Mr. Alexander: Tempting though my hon. Friend's offer is, I shall resist being drawn into a series of examples about the exceptional circumstances that I have described. However, his point was well made. I remind the Committee that there will be a degree of accountability in that the Secretary of State is accountable to Parliament. To that extent I see no inconsistency between the independence not just of the Competition Commission but the OFT and its work and a reasonable and appropriate power for the Secretary of State who is accountable to Parliament.
Question put, That the clause stand part of the Bill.
The Committee divided: Ayes 10, Noes 5.
Division No. 4]
Clause 124 ordered to stand part of the Bill.
Clause 125 ordered to stand part of the Bill.
Column Number: 444
|©Parliamentary copyright 2002||Prepared 1 May 2002|