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Lord Ackner: My Lords, before the noble Lord sits down, I wonder whether he is aware of the extent of the consultation which goes on between the Lord Chancellor's office and the senior judiciary with regard to appointments. It would be wrong to take the view that an official in the Lord Chancellor's Department is making the major input as to who should be appointed. As I understand it, having been a judge, like other judges, who was consulted when I was a judge, that input comes from regular consultation with the senior judiciary and then further consultation with the heads of division, as I understand it, supplemented by the views of the senior presiding judge and any other judge whom the Lord Chief Justice considers should form that group.

I should not like it to be thought for one moment that the appointment owes its recommendation to an official in the Lord Chancellor's Department because that would be, as I understand it, quite wrong.

Lord Kingsland: My Lords, I thank the noble and learned Lord, Lord Ackner, for his very helpful intervention. He will be relieved to hear that I am aware of the extensive consultations which the noble and learned Lord the Lord Chancellor, and his predecessors, wish to take, and have taken, with senior judges. I am aware that the Master of the Rolls is here this evening.

However, I remind the noble and learned Lord that sometimes the advice which the noble and learned Lord the Lord Chancellor will receive from his senior judges will conflict; and that conflicting advice will have to be resolved in some way. I should reflect also that since the noble and learned Lord the Lord Chancellor has so many other matters to which he must devote his scarce time he will need somebody to co-ordinate the process of consultation. That figure will be aware of many matters in respect of the views of senior judges which the Lord Chancellor will need to hear from him.

Therefore, while I entirely take the point made by the noble and learned Lord, nevertheless I believe that the point which I have sought to promote in my speech remains important and one of which I hope the noble and learned Lord the Lord Chancellor will take account.

8.26 p.m.

The Lord Chancellor: My Lords, we have had a good and important debate, to which I believe a good deal of attention will be paid in future. I can respond directly to what the noble and learned Lord, Lord Ackner said. Of course the judiciary is involved

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as a result of quite massive and extensive consultations with it in the consideration of those who should be elevated to judicial office. Certainly the Heads of Division are involved in regular meetings. The presiding judges are involved. The judiciary in general is involved as is the profession. The fact is that one of the most impressive aspects of the work of my department which I have learned about in close detail over the past seven months is the quality and extent of that consultation.

However, any Lord Chancellor has to be very hands-on himself in relation to that process to ensure its integrity and that it is full and comprehensive and not affected by any bias of any kind at all. It is an extremely important function of a Lord Chancellor effectively to make all those judicial appointments. So far, I have been concerned in the elevation of one Law Lord, four Lords Justice, five High Court judges and 10 circuit judges, and all that in a very short space of time. As the years roll on, I dare say the turnover will become more daunting. But one is entirely dependent upon maintaining a constant flow of reliable information which must primarily come from the judges who sit daily in the courts.

I well appreciate that all your Lordships who have supported the Bill have done so, understandably, with a greater or lesser sense of caution and have given that support basically on the basis that it is a measure of necessity and common sense. Along with the noble and learned Lord, Lord Simon of Glaisdale, I could wish that there was the ease of movement within our legal profession which allowed distinguished lawyers to move easily and comfortably from practice into government, into the Civil Service at high levels and then away from the Civil Service and back into the profession, so that there was a wide pool of lawyers who were well qualified to fulfil all the obvious and natural criteria for the important office of permanent secretary. But that is simply not the way of the world which we inhabit in this country and I was faced with a very limited pool of candidates for this extremely important post.

I am enormously conscious of the constitutional significance of the office which I occupy. It can perhaps only be occupied by someone who is both a minister of justice and head of the judiciary. Otherwise, that confidence in the free flow of information in both directions so as to create mutual understanding between the judiciary and the Executive could not take place--unless through a single individual who commanded the confidence of the professional judiciary at the same time as the confidence of his Cabinet colleagues.

I believe that tonight's debate will be paid close attention to by those to whom it must naturally be most closely directed. I cannot think that the first Civil Service Commissioner himself will do anything other than pay close regard to our debate and the important statements which have been made in it about the appreciation of the constitutional significance of my office and the attendant constitutional importance of the office of Permanent Secretary to the Lord Chancellor.

I also believe that it would indeed be imprudent and highly unlikely if all those who aspire to be appointed permanent secretary were to do anything other than pay

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close attention to this debate and the strong statements that have been made in it in support of the values which must be adhered to by any candidate who is to succeed.

On Question, Bill read a second time, and committed to a Committee of the Whole House.

Competition Bill [H.L.]

8.32 p.m.

House again in Committee on Schedule 10.

[Amendment No. 242 not moved.]

Lord Haskel moved Amendment No. 242A:


Page 79, line 12, leave out ("6") and insert ("1").

On Question, amendment agreed to.

[Amendments Nos. 243 to 246 not moved.]

Schedule 10, as amended, agreed to.

Clause 53 [General restrictions on disclosure of information]:

Lord Kingsland moved Amendment No. 246A:


Page 26, leave out lines 30 and 31.

The noble Lord said: The amendment deals with the confidentiality and immunity from defamation provisions in the Bill. Clause 53(1) sets out the general rule that information which has been obtained under the Bill's provisions relating to the affairs of a particular individual or undertaking and which has been disclosed in the course of investigation will be treated as confidential. That provision matches the general rule in the European Community.

However, Clause 53(1) subjects that general rule to very wide exceptions. I would draw the Minister's attention in particular to subsection (3) which says that subsection (1), which is the general rule,


    "does not apply to a disclosure of information...facilitating the performance of any relevant functions of a designated person".

If the Minister looks at subsection (4) of Clause 53, he will see that the definitions of "relevant functions" and "designated person" are given in Schedule 11. If the Minister then turns to Schedule 11, he will see that both definitions cover virtually every competition provision on the statute book operated by nearly every person who is authorised to oversee the application of those provisions.

We are talking about very wide exemptions. In particular, bearing in mind Clause 58 of the Bill, they do not conform with the jurisprudence of the competition authorities in the European Community. The Minister will be aware that the competition rules are contained in Regulation 17 (1962). He will be aware that information which is required as a result of an application of Articles 11, 12, 13 and 14 of that regulation can only be used for the purpose of the relevant part of the investigation.

The Minister will also be aware that the European Court of Justice and the European Court of first instance have extended that rule to Articles 2, 4 and 5 of Regulation 17 to which I have just referred. He will also be aware that any information falling under those articles of that regulation which is passed on to member

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states also obliges those member states to respect that rule. In my submission, in order to meet the requirement in Clause 58--namely, that the Bill respects the jurisprudence of the European Community in general and the European Court of Justice in particular--the exemption contained in Clause 53(3) will, at least in respect of that paragraph, have to be substantially modified and narrowed. I beg to move.

The Deputy Chairman of Committees (Lord Ampthill): No doubt Members of the Committee, and certainly noble Lords on the Opposition Front Bench, are aware that if this amendment is agreed to it will pre-empt Amendment No. 246B.

Lord Haskel: Clause 53 prohibits the disclosure of information obtained under the Bill, except with consent or for the particular purposes specified in the legislation. It states that unlawful disclosure of information will be a criminal offence. As drafted, Amendment No. 246A would prevent all disclosure of information for the purposes of functions under the Bill, except with consent.

The amendment would delete the gateway for disclosure for information contained in subsection (3)(a)(ii). The noble Lord mentioned subsection (3)(a)(i), and I am not quite sure of its relevance. The gateway to which I referred enables disclosure of information obtained under the powers in Part I of the Bill to the persons listed in Schedule 11 and for functions listed in that schedule. The noble Lord says that the exemptions are very wide. I am not sure that we agree with that. This provision enables, for example, disclosure of information between the Director General of Fair Trading and the Competition Commission to assist the commission to hear appeals. It also enables the director general to include relevant information in his published decisions or his draft decisions. The Committee will therefore readily see that without this gateway the new regime would be unworkable.

We have already debated the principle of concurrency at length and I do not see the need to rehearse these arguments again now. However, I shall deal with the question of disclosure of information between the regulators and the Director General of Fair Trading. The first point to make is that enabling disclosure of information between the regulators and the director general is clearly necessary for the principle of concurrency to work. The different authorities need to be able to exchange information on cases in order to determine which is best placed to deal with potential infringements of the prohibitions and to ensure that there is no unnecessary duplication of work between them.

The gateway which this amendment would remove also enables information obtained under the Bill to be used in relation to different regulatory functions. This is standard practice in the UK regulatory environment. There are, for example, similar provisions in the Fair Trading Act, the Competition Act, the Restrictive Trade Practices Act, the utility statutes, the Financial Services Act and the Companies Act, to name but a few. Clause 53 therefore provides gateways for the disclosure of information obtained under the Bill between the

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Director General of Fair Trading, the utility regulators and the other regulatory authorities listed in Schedule 11.

I make no apologies for this. The noble Lord thinks that the provisions are rather wide, but they are necessary. Information may be disclosed only in order to assist the recipient to perform his statutory functions. If one of these regulators has evidence of a potential infringement of, say, a licence regime supervised by another regulator, it would be quite wrong to require him to keep the information to himself. We need to ensure that the different regimes work coherently and efficiently together.

The noble Lord referred to EC information. We do not believe that the EC precedent in this respect is relevant to UK circumstances. There are not the equivalents of the utilities regimes and regulators at EC level. It is important that the UK regulatory regime viewed as a whole operates in a coherent and sensible fashion. Preventing the disclosure of information between regulators, and its use for different statutory functions, would frustrate that objective.

I wish to correct an earlier statement. The noble Lord was absolutely right to refer to Clause 53(1).

If I may summarise my remarks, this amendment attacks the principle of concurrency--we have given that question a good airing--but also risks undermining the coherent and efficient co-existence of the utility regimes with general competition law. I hope that the noble Lord will accept this argument and see fit to withdraw his amendment.

8.45 p.m.

Lord Kingsland: First, I wish to thank the noble Lord for his elucidation of this part of the Bill. I thank him also for bravely correcting his earlier assertion.

In looking at the text it seems to me--notwithstanding the point that the noble Lord makes about concurrent responsibilities and the need for regulators and other regimes to see what information the director general has--that the drafting of this provision goes way beyond what he has said. In my submission, as the provision is drafted it would remove any restriction on the director general to disclose this information to anyone.


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