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Lord Kingsland: I am relieved to hear that the noble Lord did not apply this section to the President of the Board of Trade because he thought that she was above the law. I thank the noble Lord for his response. However, I would like to probe one passage in the text to see whether I have understood the spirit, if not the letter, of his reply. In the penultimate sentence of Clause 58(2) there is the expression "with a view to securing that there is no inconsistency between". Am I right in thinking that as a result of his reply, that expression can be taken to be the equivalent of the expression "to ensure consistency?"

Lord Simon of Highbury: I admit to the noble Lord, Lord Kingsland, that they seem to be saying very much the same thing.

Lord Kingsland: I am much obliged. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 254 to 257 not moved.]

Lord Fraser of Carmyllie moved Amendment No. 257A:


Page 29, line 43, at end insert--
("( ) When adjudicating upon the application of the Chapter I and Chapter II prohibitions, the Director or a regulator shall be regarded as a court or tribunal for the purposes of Article 177 of the Treaty and may make requests to the European Court for preliminary rulings as provided for in that Article.").

The noble and learned Lord said: All we are hoping to have confirmed for us is that when adjudicating upon the application of either Chapter I or Chapter II prohibitions either the director or a regulator shall be regarded as a court or a tribunal for the purposes of the important Article 177 of the Treaty and will accordingly be in a position to make requests to the European Court for preliminary rulings as provided for in that article. If the Minister's answer is that they will be able to do so, I shall immediately withdraw my amendment.

9.45 p.m.

Lord Simon of Highbury: I am able to confirm.

Lord Fraser of Carmyllie: That is the most satisfactory answer the Minister has given all evening. I am pleased to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 58 agreed to.

25 Nov 1997 : Column 964

Clause 59 agreed to.

Clause 60 [Power to enter premises: Commission investigations]:

Lord Fraser of Carmyllie moved Amendment No. 258:


Page 30, line 38, leave out ("A justice of the peace") and insert ("The President of the Tribunal").

The noble and learned Lord said: At the risk of irritating some Members of the Committee this amendment relates to the deletion of the words "A justice of the peace" and the insertion of "The President of the Tribunal". This is a theme that we have explored previously. I hope the Government appreciate that in the circumstances of this complicated legislation we feel that it would be appropriate to upgrade the status of those to whom application should be made. So long as we are confident that the Government are appreciative of our desire to return to this point at the next stage of the Bill, I hope that the Minister will feel able to deal with it briefly.

Lord Haskel: I can deal with the matter briefly. As the noble and learned Lord will recall, on 17th November I undertook to consider the amendment to provide for the issue of warrants by a High Court judge rather than the president of the competition commission tribunal. I see no reason to go over the same ground again. The same principle applies. We will consider it within the same context.

Lord Fraser of Carmyllie: I am grateful to the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Haskel moved Amendment No. 258A:


Page 31, line 2, leave out ("prevented from doing") and insert ("unable to do").

The noble Lord said: For the convenience of the Committee I shall speak also to Amendments Nos. 261A and 263A. These are amendments to ensure that Clauses 60 and 61 reflect the corresponding provisions relating to investigations under the domestic regime. It is a matter we have already debated. I beg to move.

Lord Lucas: I should like to know whether the new phrasing incorporates the old one; in other words, if I am standing at the door of the offices and preventing the poor man from coming in, presumably, if he were to push past me, he would be able to get in. However, he chooses not to do so. So he is able to do so, but chooses not to do so. I am preventing him. I am not sure that the new wording is an improvement on the old. I appreciate the attempt that is being made to turn the active into the passive but the word "unable" begs the question whether an official, who is able but chooses not to, will find that this clause no longer applies to him, whereas the previous clause would have done.

Lord Haskel: It will apply, because the purpose of Amendment No. 261A is to ensure that not just the commission official who is being obstructed but any

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other commission official who has been authorised to conduct the investigation can carry it out and can be named on the warrant.

On Question, amendment agreed to.

[Amendments Nos. 259 to 261 not moved.]

Lord Haskel moved Amendment No. 261A:


Page 31, leave out line 20 and insert--
("(c) any official of the Commission authorised for the purpose of the Commission investigation,").

On Question, amendment agreed to.

[Amendment No. 262 not moved.]

Clause 60, as amended, agreed to.

Clause 61 [Power to enter premises: Director's special investigations]:

[Amendment No. 263 not moved.]

Lord Haskel moved Amendment No. 263A:


Page 31, line 44, leave out ("prevented from doing") and insert ("unable to do").

On Question, amendment agreed to.

[Amendments Nos. 264 to 267 not moved.]

Clause 61, as amended, agreed to.

Clause 62 agreed to.

Clause 63 [Monopoly investigations: general]:

Lord Haskel moved Amendment No. 267A:


Page 33, line 6, leave out ("subsections (2) and (3)") and insert ("subsection (2)").

The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 267B to 267G, 269A to 269E, 271A to 271C, and 276A and 277A. My remarks also cover Amendment No. 209A, which is a consequential change to Schedule 10 flowing from these amendments. These amendments relate in substance to Clauses 63 to 65 of the Bill.

The Government's amendments are intended to achieve four goals: first, to remove redundancies resulting from the Bill as currently drafted; secondly, to clarify the intended scope of the powers; thirdly, to maintain consistency between the Director General of Fair Trading's powers to require information under the Fair Trading Act and those of the Monopolies and Mergers Commission, or the competition commission as it will become; fourthly, to reflect changes already made to the investigation and enforcement powers provided in Clauses 26, 27 and 41 in relation to the prohibitions.

I shall go through these changes briefly. Amendment No. 267D repeals Section 44(2) of the Fair Trading Act. We have concluded that the powers in Section 44(2) will become redundant with the introduction of the wider powers provided by Clause 63.

Amendment No. 271A repeals Section 45 of the Fair Trading Act. As with the previous amendment, we have concluded that the investigation powers in Section 45 will become redundant with the strengthening of the powers under Section 44. The

25 Nov 1997 : Column 966

amended Sections 44 and 45 would therefore be duplicatory. While this would not be unworkable, it would not be good legislation.

The Committee will, I am sure, appreciate that with the deletion of Section 45 of the Fair Trading Act, Clause 64 of the Bill becomes redundant. Clause 64 was intended to enhance the powers provided for the director under Section 45. As a result of the amendments I have tabled, therefore, we propose that Clause 64 should not stand part of the Bill.

Amendments Nos. 267B and 269A are intended to clarify that the director may use the investigation powers provided by Clause 63 to help him to decide whether he should either make a monopoly reference or propose undertakings in lieu. The powers are not intended to be limited to when the director is deciding one or other of these things. It was always the intention that this should be the case, but it is clearly important that the drafting of the legislation is not ambiguous on the point.

Amendments Nos. 267E to 267G and 269E are needed to make the powers provided by Clause 63 consistent with those provided in relation to the prohibitions. They are analogous to changes we had previously made to the prohibition powers but which we had not had time to reflect in Clause 63. So Amendment No. 267F deletes the power to search for documents, which is a change we made in light of the consultation responses, in relation to the powers of entry without a warrant when investigating suspected infringements of the prohibitions. Amendment No. 267G replaces the power to require persons to produce such information as the director may require, with the requirement to provide an explanation of documents. Amendment No. 267E enables the director to specify categories of document that he requires to be produced. That is in line with the power in Clause 26. And Amendment No. 269E amends the sanctions and the defences provided in relation to non-compliance in line with those in Clause 41.

Amendment No. 269B provides, with Schedule 10, paragraph 1, that the amendments made to the director's powers under the FTA also apply when those powers are being exercised concurrently by the regulators. Amendments Nos. 271B and 271C amend the MMC's Fair Trading Act powers to require information and documents to maintain alignment with the director's powers.

Finally, Amendments Nos. 267A, 267C, 269C and 269D are consequential changes to Clauses 63 and 65. Amendments Nos. 209A, 276A and 277A are consequential amendments in Schedules 10, 12 and 14 and in the Long Title of the Bill.

Perhaps I may now return to the purpose of these clauses. The powers of investigation currently provided under the Fair Trading Act are widely agreed to be unsatisfactory. The changes introduced by the Bill are needed to ensure that the director's powers under the FTA are adequate for him to establish quickly and effectively what action needs to be taken.

25 Nov 1997 : Column 967

In particular, we consider that the director should be able to require the production of relevant information on due notice, as provided for in the Bill. We also believe that the director general should have a right of entry in pursuing his enquiries under the Fair Trading Act, although, as I have said, we do not believe that this should extend to a right of forcible entry. It is also right that parties under investigation should be under a statutory duty to give all reasonable assistance to the director general in carrying out his functions.

In short, these clauses put right a widely recognised weakness in the Fair Trading Act regime. They fit within the Government's overall determination to establish a modern and effective system of competition law. The amendments that I have tabled tidy up various loose ends in the clauses. I beg to move.

On Question, amendment agreed to.


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