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Lord Bruce of Donington: My Lords, I rise to speak in support of Amendment No. 17 which is very much on the same point as that dealt with by the noble Baroness, Lady Wilcox. The essence of this Bill--I shall touch on certain ambiguities when I deal en passant with the definition provisions clause, Clause 58--is that it prohibits a whole series of activities and removes the prohibition as far as concerns those not covered by it. Everything is prescribed unless it is exempted.

Clause 3(1)(d) refers to professional rules that are dealt with in Schedule 4. Schedule 4 exempts certain professional services from the operation of the prohibition provided for in earlier clauses of the Bill. One sees set out various matters: the services of barristers, the provision of medical or surgical advice, the services of nurses et cetera. I should like to refer to one extraordinary provision that deals with accountants. I declare an interest as a practising accountant. When one looks at accounting and auditing, the definition is:


Apparently they are not prohibited. But there are many engaged in the accounting profession who do not come within that particular definition. I cite my own firm which is now one of the larger ones that deals mainly with taxation matters. Am I to assume that in the course of the normal expansion of the firm, particularly in the field of taxation, even though it may achieve a position of some dominance that the commission may not like, it will nevertheless be quite in order for it to go ahead? The whole matter is a little ambiguous. If one can be precise about dentists, nurses, architects and so on, one can at least have some degree of precision about the accounting profession.

It is for this reason that I have tabled Amendment No. 17 which adds to Clause 3 of the Bill immediately after subsection (5):


    "(6) The Secretary of State may at any time by order amend Schedule 4, with respect to the Chapter I prohibition, by adding one or more professional services to the list set out in Part II of that Schedule",

a summary of which I have just rendered to your Lordships. The amendment also adds the following subsection:

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    "(7) The Secretary of State must keep the list of professional services set out in Part II of Schedule 4 under review".

That seems quite logical. If one is dealing with matters of such importance as the complete prohibition of an activity it is up to the Secretary of State, if necessary with the aid of the professions concerned, to keep that matter up to date and to ensure that the members who are subject to their own professional disciplines are not thereby disadvantaged.

I sincerely hope that this will find favour with the Government. It is not a very onerous responsibility for the Secretary of State to keep in touch with the various professional bodies to make quite sure that they are not disadvantaged in their own country. That seems to be a normal thing to do. I hope that in the normal way the Government will accept the amendment. However, in my experience over the past 20 years or so it is very rare for any government to accept amendments at Report stage unless they have been specifically solicited by the Government themselves. This is a very convenient administrative apparatus that has become enshrined by the passage of time in the proceedings of your Lordships' House. But I should have thought that this would have been sufficiently significant.

The real reason that the Government are not prepared to accept the amendment is that there may be a possibility, nay a probability, that we shall be in conflict with Community law. I hope to be in a position perhaps in five years' time, God willing, to tell your Lordships, "I told you so five years ago".

I should like to refresh your Lordships' memory of this matter because this did not appear to be adequately emphasised in Committee. Since the other place pays perfunctory attention to matters of detail of this kind, I venture to acquaint your Lordships with the contents of the definition clause that governs this particular part of the Bill. I refer to Clause 58. I trust that your Lordships will forgive me if I read this because the provision is quite incredible when taken in conjunction with the law as we formerly understood it in this country. The provision reads:


    "(1) The purpose of this section is to ensure that so far as is possible "

--that is a nice precise term to which I have no doubt British law is well accustomed--


    "(having regard to any relevant differences between the provisions concerned)"--

that is a lovely little sentence, is it not? It goes on:


    "questions arising under this Part in relation to competition within the United Kingdom are dealt with in a manner which is consistent with the treatment of corresponding questions arising in Community law in relation to competition within the Community".

What a lovely text to incorporate into British law, which is normally interpreted by reference to the letter of the law, not various inferences that may be drawn from generalities that refer to it. I invite your Lordships to listen to the following:


    "(2) At any time when the court"--

that is a British court--


    "determines a question arising under this Part, it must act (so far as is compatible with the provisions of this Part and whether or not it would otherwise be required to do so) with a view to securing that there is no inconsistency between--

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    (a) the principles applied, and decision reached, by the court in determining that question; and (b) the principles laid down by the Treaty and the European Court, and any relevant decision of that Court, as applicable at that time in determining any corresponding question arising in Community law".

I leave it to others, notably the noble and learned Lord, Lord Ackner, whom I am pleased to see here, to solve that ambiguity for us. It is of course a load of nonsense. There is no question of trying to get British law and British courts, which rely mainly upon the letter of the law and precedents under the statutes, to begin to accept the generalities of Community law--so-called--which relies largely upon its recitals and preambles. Cannot we at least have recourse to our own law which we can respect and enforce rather than endeavour to merge it in some mysterious way, outlined in Clause 58, which blurs the line in making any question of law in this country properly enforceable and leaves it open to good and honest ridicule?

5 p.m.

Lord Howie of Troon: My Lords, your Lordships will be pleased to learn that I do not intend to follow my noble friend in his interesting and labyrinthine speech.

A noble Lord: Why not?

Lord Howie of Troon: My Lords, because I do not know enough about it. When he said that five years from now he would be able to tell us, "I told you so five years ago", he was under-estimating his position, because he will be able to say not five years ago, 10 years ago, 15 years ago, but probably 25 years ago, if not more. I do not wish to irritate him. I wish to suggest to my noble friend the Minister that he oppose the amendment.

When I came into the Chamber I was surprised to hear the matter raised again, because we had a brief discussion of it in Committee. At that time I thought there was some confusion about the nature of the professions as against the nature of business. I have to declare an interest of a sort. As a chartered civil engineer I am bound by the rules of the Institution of Civil Engineers, and the professional rules of the Engineering Council, or at any rate I was while I practised. I still hold them in my heart, having ceased to practise.

In Committee we tried to draw to the noble Baroness's attention the fact that professions are not the same as businesses. She naturally wishes to put everything into the straitjacket of the business community, as if everything were a public liability company, to be bound by the same rules and to work under the same conventions. Professions are not like that. As she partially admitted, the rules of a professional body are, to a large extent, directed towards the protection of the public. They are mainly concerned to ensure that the person who offers a professional service is, first, fully qualified to offer that service. That is different from the business community where no such obligation exists. That is the key difference between those two functions.

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I do not want to go on, because we have had a fairly lengthy debate on this short amendment. During our previous debate I remarked to the noble Baroness that if she wanted to find out the difference between business and the professions in detail she should turn her attention to a well known book called The Acquisitive Society, written by R. H. Tawney in 1923, where the matter is gone into in great detail. Tawney proposes that the business community adopt the rules and regulations of the professions rather than the other way about, as has been suggested here.

I know that I shall be told that a number of things have happened in the business and professional worlds since 1923. That is true. A number of professions have gone down the route that the noble Baroness would like to see. Some of us do not like to see it. I assume that as the noble Baroness has tabled the amendment again she did not take my advice, go to the Library and read R. H. Tawney. I suggest that she do it now. The kind and polite thing to do would be for her to withdraw the amendment. That would be much appreciated in the professions. If she does not feel inclined to do that, I hope that my noble friend will kick her into touch.


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