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Lord Lucas: I found that last explanation so convincing that I have entirely forgotten why I tabled the amendment.

Lord Kingsland: In those circumstances, I have no option but to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 178 to 187A not moved.]

Clause 46 agreed to.

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Clause 47 [Appeal tribunals]:

Lord Kingsland moved Amendment No. 188:

Page 24, line 2, after ("Tribunals") insert ("and such other persons as he considers appropriate, including organisations representing industry").

The noble Lord said: I have some expectation that this amendment will not prove controversial. It simply adds to the list of consultees set out in Clause 47(2). After the word "Tribunals" the amendment seeks to insert,

    "and such other persons as he considers appropriate, including organisations representing industry".

Here is one exception to all the other cases that we incorporated in our amendments today when we are expanding the discretion of the Secretary of State, not seeking to contract it. I beg to move.

Lord Simon of Highbury: The final statement made me pause to reflect, but not for too long. Clause 47(2), to which this amendment relates, contains a power for the Secretary of State to make rules in relation to appeals. I should explain that it is the Government's intention that this power should be exercised by statutory instrument subject to annulment. The Bill does not currently provide for that. That is an oversight. I draw the attention of the Committee to Amendment No. 271, relating to Clause 67, which we will come to in due course and which is designed to put that right.

We intend therefore that the rules should be open to parliamentary scrutiny before they are introduced. In drawing up the rules we will also consult the council on tribunals. The new tribunal will, in any case, be subject to scrutiny by the council.

As the noble Lord, Lord Kingsland, implied, we also have every intention of consulting relevant organisations. On the specific point to which this amendment is directed, I am happy to commit to consulting industry interests on draft rules. That was our intention in any case and the Bill does not preclude such consultation.

Again, I feel rather like the reasonable man, although I am becoming more unreasonable every time I say it. The amendment is unnecessary because it is included in the overall intention of the clause. Having heard my explanation, perhaps the noble Lord would be prepared to withdraw the amendment. If not, I shall think carefully about whether it adds to the powers of the Secretary of State in the most reasonable way.

Lord Kingsland: I thank the Minister for his response. I hope that he will reflect on the amendment and by one means or another ensure that the Secretary of State takes into account the various factors that underlie the text. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 47 agreed to.

Clause 48 [Appeals on point of law etc.]:

[Amendments Nos. 188A to 188G not moved.]

Clause 48 agreed to.

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10 p.m.

Schedule 8 [Appeals]:

[Amendment No. 189 not moved.]

Lord Lucas moved Amendment No. 190:

Page 64, line 41, leave out ("no valid") and insert ("insufficient").

The noble Lord said: This is, I hope, a very simple amendment. It is directed at the end consequences of Clause 46 and what follows by way of third party appeals. Perhaps the Minister would be kind enough to confirm my understanding that this is the sole route of third party appeals provided by the Bill. There has been some suggestion that, somewhere in its crannies and crevices, the Bill gives third parties additional rights to take action on the causes set out in the Bill in the courts rather than through the director. I have heard that, but I have not yet been able to detect it. I hope the Government will confirm that that is not the case and that the third party rights are all and only as set out in Clause 46 and following clauses.

That being the case, I am concerned that those organisations subject to the Bill should be free from vexation and harassment by those who wish to pursue political points, whether based on matters of emotion, ecology, morality or religion, which occasionally afflict people in their battles with companies. It seems to me that that is what this part is dealing with, but it appears to be rather narrowly drawn. It is drawn to say that the appeal "reveals no valid ground". That is an astonishingly strict interpretation. One can think of few circumstances where an appeal would have no valid ground.

With regard to paragraph 7(b), the person who falls under that sub-paragraph would have to be so habitually litigious as to be almost notorious. I would much prefer discretion to be given to the competition commission, on a rather wider scale, to deal with actions and appeals which amount merely to harassment rather than there being any substantial cause behind it which might lead to a substantially varied decision by the director or ought to have led to such a variation in decision. Therefore, I should like to see, if not this amendment, at least something made to the same effect to give the commission the discretion to deal with people seeking to misuse the powers given under the Bill. I welcome the ability of third parties to take action under the Bill but I think it has to be moderated by good sense. I beg to move.

Lord Simon of Highbury: Perhaps I may confirm for the noble Lord, Lord Lucas, that this is the only part of the Bill which refers to the appeal process for third parties. He has no need to look elsewhere for the third party appeal process.

I thank the noble Lord for his suggestion that the formulation "insufficient reason" should be used for consistency, particularly to be consistent with Clause 46(4). The test in that clause relates to the substance of a decision, and not whether, as here, the grounds for appeal are admissible. I have some difficulty in thinking that there is in practical terms any significant difference between the formulation "no valid" and "insufficient".

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"Valid" is the right word because what the tribunal will be looking at is whether the appellant has a basis for appealing, and not how strong his case is.

To the extent that the amendment may have an effect in practice, it would probably tend to make it more common for the tribunal to reject appeals. I am not persuaded that that would be right. The provision is directed at disallowing appeals based on grounds which are simply not proper grounds for the tribunal to deal with. At an early stage that would be a decision thus saving costs for everyone. It is very important that we do not undermine the arrangements in the Bill which ensure that there is effective recourse to appeal under the new regime.

At this stage debating the words "valid" and "insufficient" would get us into considerable trouble. We take the view that "validity" is the right word because we are looking at whether the appellant has a basis for appeal and not the strength of the case.

Lord Lucas: I thank the Minister for that explanation. Before withdrawing the amendment there are two things I would like to leave on the record. The first is that my question was not whether this is the only appeals mechanism in the Bill for third parties, but whether this is the only part of the Bill which gives additional rights to third parties to attack the evils which are identified particularly in Clauses 2 and 18 of the Bill; in other words, whether in the interstices of this Bill third parties are given the right of independent action through the courts. I do not necessarily require an answer now, but if the answer is yes I would very much like to have it before Report stage.

Secondly, let us suppose we have a third party appealing on the basis that the market share which the director general said existed was 17.9 per cent. when in

17 Nov 1997 : Column 456

fact it was 18.3 per cent. Under those circumstances where there is a very minor allegation of error of fact, but possibly a quite correct one, which is unlikely to make any major difference to the findings, will the competition commissioner have to go through the whole panoply of a monopolies commission investigation, or is there in the Bill--and I shall be grateful if the noble Lord can point it out--some power other than that contained in paragraph 7 to exercise summary judgment? If there is no ability to do that, and if the smallest error of fact under paragraph 2(a) is sufficient to trigger a complete investigation, then that needs looking at. I am happy to leave those points to Report stage.

Lord Simon of Highbury: Perhaps I may take up the point again on third party rights. I want to make it absolutely clear that the only rights of appeal for third parties in this Bill are set out in this schedule, as I have said. It is true that third parties have rights to seek damages in the courts as a result of actions held here. As regards the wider point on third party rights under the Bill other than by appeal, I should like to respond to the noble Lord on that subject separately. That point having been made for the record, I shall be delighted if the noble Lord withdraws the amendment.

Lord Lucas: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 8 agreed to.

Lord Haskel: I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

        House adjourned at nine minutes past ten o'clock.

17 Nov 1997 : Column 455

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