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Baroness Nicol: I support what the noble Lord, Lord Kingsland, has just said about the need for generosity in the time allowed. What is being proposed will impose a severe burden, particularly on small businesses. Larger businesses, which may have had to meet this kind of exercise before, particularly in relation to European legislation, will be familiar with the exercise. However, it will be quite different for smaller businesses which have not had to do it before. They quite often have complicated agreements which they need to examine in detail. I hope that the Minister will look kindly on this amendment and will try to be as generous as possible with the time allowed for businesses to prepare.

Lord Simon of Highbury: I am in sympathy with what I believe to be the intention behind Amendment No. 200A and also with the general intention of Amendment No. 274. It is important that the main elements of the regime should be in place in good time before the prohibitions start to apply.

Clause 50 and these amendments deal with the preparation and publication of advice and information. I hope that Members of the Committee will forgive me if I refer to such advice and information as guidelines. That seems to be the more generally accepted term. Indeed, it is the one used in the letter from the Director General of Fair Trading that I referred to in the discussion on Clause 49. It may be helpful if I repeat my remarks made in relation to Clause 49, since we have had the break and the Statement, on the Government's proposals in this area.

First, if the Bill is granted Royal Assent, there will be a period between Royal Assent and the coming into force of the prohibitions. I would expect this period to be about one year. I would also expect rules under Clause 49 and guidelines under Clause 50 to be issued early in that period. The OFT has already begun this task and is focusing on drawing up the guidelines which will be of most interest to business. That is stated in the letter placed in the Library. The director general has committed himself to full consultation both with the other regulators and with business and practitioners on guidelines and procedural rules. The director general says that it is his firm intention to issue consultation drafts before Royal Assent where practicable. He goes

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on to say that he would want to concentrate on those guidelines which would be of most immediate use to business. It is essential to recognise that the guidelines will not be a single publication. They will be a developing series. The director general is focusing on getting the more important guidelines out first and getting them out in good time.

The issuing of the guidelines must necessarily allow proper time for consultation and consideration of the points raised in consultation. If, for any reason, adequate guidelines could not be issued early in the period after Royal Assent, I would expect the Government to consider very carefully the case for delaying the commencement date for prohibitions. I should perhaps add that, as a general rule, the transitional period from the Chapter I prohibition will not begin until the prohibition itself has been brought into effect. The transitional period itself will be one year for agreements generally, subject to the points in Paragraphs 9 and 10 of Schedule 13.

Accordingly, the transitional period will not in any case start until a date after the rules, advice and information are issued. On the basis of those commitments, I believe the amendment is unnecessary and I invite the noble Viscount to consider withdrawing it.

Viscount Astor: I am extremely grateful to the Minister for his constructive and helpful reply. However, there is one point I do not quite understand. I wonder whether he can enlighten me. He said, very reasonably, that if the consultation period were delayed, the Government would consider delaying commencement. What powers does the noble Lord have to do that? How will that happen under the Act? What is the mechanical process and how will it work? Perhaps the Minister will briefly explain that.

Lord Simon of Highbury: I cannot explain it now, but I shall write to the noble Viscount and explain it very carefully.

Viscount Astor: I am grateful to the noble Lord. I cannot speak for my noble friend Lord Kingsland and his amendment but I have no intention of pushing mine. We have cast some light on a rather foggy situation but more answers are certainly required from the Government. If the noble Lord is right in what he says about the process happening and the timetable he laid out, it begs the question of why my noble friend's amendment is not acceptable. However, I shall leave it for my noble friend to make that point. In the meantime, unless my noble friend wishes to intervene, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 201 not moved.]

5.15 p.m.

Lord Ezra moved Amendment No. 202:


Page 25, line 28, at end insert--
("( ) In preparing the advice and information required by this section the Director should consult interested parties including those representing industry, consumers and enforcement bodies.").

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The noble Lord said: The purpose of this amendment is to ensure that, in preparing the advice and information required by this clause, the director should consult interested parties, including those representing industry, consumers and enforcement bodies. I may well get the answer that, "Of course he will do that: he would be out of his mind if he did not". Nevertheless, I would feel happier if it were on the face of the Bill.

I am particularly concerned with enforcement. One of the things that the director will have to do in this general advice and information is to include the details on the enforcement of these prohibitions. The enforcement of anti-competitive measures has tended to be very much not only in the hands of the OFT but also in the hands of the trading standards officers. Both the noble Lord, Lord Borrie, and I have been closely involved in the work of the Institute of Trading Standards Administration. There is also a body called LACOTS, the local authorities' co-ordinating body on trading standards, which was set up in 1978 to try to get some co-ordination in the way in which enforcement in this area is carried out.

The problem that the Bill raises in the matter of enforcement is that there are so many enforcement authorities. There is the OFT itself, there are the regulators in the utilities and there are the various layers of local government which have their own trading standards officers. Therefore, it seems to be highly desirable that there should be some attempt at co-ordination in this area of enforcement. In my opinion, that could best be achieved if the director had, as a matter of course, to be in regular consultation, particularly for the purposes of this clause, with the enforcement organisations.

I very much hope that the Government will see fit to accept this modest amendment. I beg to move.

Lord Kingsland: Two other amendments have been joined to this amendment--Amendments Nos. 204 and 205. I have nothing to add to what the noble Lord, Lord Ezra, said.

Lord Borrie: Perhaps I may associate myself with the remarks of the noble Lord, Lord Ezra, as he mentioned my name. I had the honour to succeed him as president of the Institute of Trading Standards Administration, a post which I gave up last year, to be succeeded in turn by the noble Baroness, Lady Wilcox. So three political parties have represented it and all of us highly value its work.

As a result of this Bill the Office of Fair Trading does not have, and will not have, any local or regional resources of any kind. Therefore, when it comes to enforcement it may be no more than information or quite a lot more in terms of identifying what has taken place in respect of local cartels or anti-competitive practices. It will be reliant on local officials who are trading standards officers. I specially mention that point although I anticipate, like the noble Lord, Lord Ezra,

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that since the director general will do all sensible things in the way of consultation, there is a degree to which this amendment is not absolutely essential.

Lord Simon of Highbury: I feel a certain force in the directions from which the amendments are being supported. This is perhaps the first time that I have felt a 360 degree force on a matter. However, at this stage the director general's letter, to which I have already referred, helpfully addresses a number of the issues raised by these amendments. I recognise the points made by the noble Lord, Lord Ezra, and by my noble friend Lord Borrie in terms of the real value that representative organisations have and place into the arena of consultation.

Effectively, Amendments Nos. 202, 204 and the new subsection (9) of Amendment No. 205 would require the director, in preparing guidelines, to consult interested parties. In his letter the director general says that it is vital to get the guidelines right and that this can only be achieved by thorough and timely consultation with industry representatives and practitioners. He also says that he intends to place the consultation drafts in the Libraries of both Houses as soon as they are ready. The director general has committed himself to full consultation. So I do not believe that there is no need for a provision in the Bill to require it.

The first part of Amendment No. 205 would require regulators to consult the director general and to ensure that their guidelines do not conflict with his. The DGFT in his letter refers to the joint working arrangements with regulators for the production of guidelines. A joint working party of the Office of Fair Trading and regulators, chaired by OFT, is being set up and will establish a programme. Clause 50(7) of the Bill already requires a regulator to consult the director general as well as other regulators in the preparation of guidelines. I believe that the joint working arrangements are a better way to proceed than any further formal requirements in the Bill.

The last part of Amendment No. 205 would enable the Secretary of State to make an order requiring guidelines to be treated as if they were rules made under Clause 49. I do not agree with that. What is appropriate for procedural rules will not be appropriate for what the director general describes as,


    "interpretation by the sector regulators and myself of the legislation and associated jurisprudence".

He also rightly says that guidelines do not have legal effect or determine the scope of what is prohibited. They need to evolve and change over time, to reflect case law and developments in EC jurisprudence. This sort of evolution is not consistent with an order-making process. Indeed, any attempt to give legal force to guidelines might risk the UK prohibitions getting out of step with EC case law, with a consequent increase in burdens on business.

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Despite the 360 degree pressure that I felt coming across the Chamber, I hope that with these explanations and particularly with the director general's helpful assurances, the noble Lord will be willing to withdraw the amendments.


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