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The Deputy Speaker: My Lords, if Amendment No. 106 is agreed to, I cannot call Amendment No. 106A.

Lord Haskel moved Amendment No. 106:


Page 14, line 44, leave out from ("(1)") to end of line 1 on page 15 and insert--
("(bb) to take possession of any documents appearing to be of that kind if--
(i) such action appears to be necessary for preserving the documents or preventing interference with them; or
(ii) it is not reasonably practicable to take copies of the documents on the premises;
(bc) to take any other steps which appear to be necessary for the purpose mentioned in paragraph (bb)(i);").

The noble Lord said: My Lords, I spoke to Amendment No. 106 earlier. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 106A and 107 not moved.]

Lord Haskel moved Amendment No. 108:


Page 15, line 2, leave out ("such document") and insert ("document appearing to be of a kind mentioned in subsection (1)").

The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 109 and 109A not moved.]

The Deputy Speaker: My Lords, if Amendment No. 110 is agreed to, I cannot call Amendment No. 110A.

Lord Haskel moved Amendment No. 110:


Page 15, line 10, leave out from second ("the") to first ("that") in line 11 and insert ("judge is satisfied").

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The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 110A to 111A not moved.]

Lord Ezra had given notice of his intention to move Amendment No. 112:


Page 15, line 24, at end insert ("provided that such steps which appear to be necessary shall be taken to provide the person from whom such documents have been taken with access to them whilst they are in the possession of the Director.").

The noble Lord said: My Lords, I heard what the noble Lord, Lord Haskel, said in relation to this amendment. While I am prepared to accept that the director would always act reasonably, nonetheless it seems to be reasonable guidance to give to him. Perhaps therefore the Government will reflect on this minor amendment between now and Third Reading. I shall not now move the amendment.

[Amendment No. 112 not moved.]

[Amendment No. 112A not moved.]

Lord Haskel moved Amendment No. 113:


Page 15, line 27, leave out from ("behalf") to end of line 28.

The noble Lord said: My Lords, I spoke to Amendment No. 113 with Amendment No. 84. I beg to move.

On Question, amendment agreed to.

Lord Haskel moved Amendment No. 114:


Page 15, line 29, leave out subsection (9).

The noble Lord said: My Lords, I spoke to Amendment No. 114 when we debated Amendment No. 102. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 114A and 114B not moved.]

Lord Haskel moved Amendment No. 115:


After Clause 28, insert the following new clause--

Entry of premises under warrant: supplementary

(" .--(1) A warrant issued under section 28 must indicate--
(a) the subject matter and purpose of the investigation;
(b) the nature of the offences created by sections 41 to 43.
(2) The powers conferred by section 28 are to be exercised on production of a warrant issued under that section.
(3) If there is no one at the premises when the named officer proposes to execute such a warrant he must, before executing it--
(a) take such steps as are reasonable in all the circumstances to inform the occupier of the intended entry; and
(b) if the occupier is informed, afford him or his legal or other representative a reasonable opportunity to be present when the warrant is executed.
(4) If the named officer is unable to inform the occupier of the intended entry he must, when executing the warrant, leave a copy of it in a prominent place on the premises.

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(5) In this section--
"named officer" means the officer named in the warrant; and
"occupier", in relation to any premises, means a person whom the named officer reasonably believes is the occupier of those premises.").

The noble Lord said: My Lords, I spoke to Amendment No. 115 when we debated Amendment No. 102. I beg to move.

On Question, amendment agreed to.

Clause 30 [Decisions following an investigation]:

Lord Fraser of Carmyllie moved Amendment No. 116:


Leave out Clause 30 and insert the following new clause--

Notice prior to making decisions

(" .--(1) Subsection (2) applies if the Director proposes to make--
(a) a decision that the Chapter I prohibition has been infringed; or
(b) a decision that the Chapter II prohibition has been infringed.
(2) Before making a decision under this section, the Director must--
(a) give not less than 28 days written notice to the person (or persons) likely to be affected by the proposed decision;
(b) give that person (or those persons) a reasonable opportunity to make representations to him including, at the request of that person (or persons), oral representations; and
(c) take account of and comment upon any such representations when making his decision.").

The noble and learned Lord said: My Lords, I appreciate the desirability of putting together groups of amendments where there is a common theme. I congratulate the noble Lord on this grouping; he excelled himself and it is a volume to get through. However, I am not equal to the task and may indicate to the noble Lord that we will deal with Amendments Nos. 125 and 126 when we come to them in their appropriate place. Perhaps I can speak first to Amendment No. 116.

As the Minister will appreciate, Clause 30 would require those affected by a decision to be given notice of the opportunity to make representations before that decision is made. However, that requirement applies only where the decision relates to investigation conducted by the Director General of Fair Trading under the powers provided by Clause 25 of the Bill and the DGFT is not placed under an express obligation to take account of any representations made to him.

The new clause would change the procedure which the DGFT or the regulator must follow before making a decision that a Chapter I or Chapter II prohibition has been infringed. It would extend the obligation to give notice in any case where the DGFT or the regulator proposes to make a decision that the Chapter I or II prohibition has been infringed and would ensure that the obligation is undertaken properly by requiring him to take account of any representations made.

It would seem to us that that would be in accordance with the rules of natural justice--ensuring that decisions were made on a properly informed basis with due regard being paid to the views of any person affected by them and ensuring that such persons have the right to be heard and make representations, similar to that enjoyed before

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a court, in all cases where it is proposed to make decisions affecting them. The need for the DGFT to take account of or comment upon any representations received would, in our view, assist the tribunal in the hearing of any subsequent appeal on the decision that has been made.

Perhaps I may turn to Amendments Nos. 117 to 120, which are amendments to Clause 31. Clause 31 gives the director general the power to make directions in respect of infringement of a Chapter I prohibition. These amendments are designed to provide safeguards in relation to the exercise of the powers given to him under that clause. As presently drafted, subsection (1) allows the director general to give a direction to any person he considers appropriate for the purpose of bringing the infringement of the Chapter I prohibition to an end. That would include innocent third parties.

The first amendment we tabled would limit the sweeping power given to the director general so that such directions may be given only to those party to the relevant agreement. The clause provides for any such direction to include a requirement to modify or terminate the relevant agreement, but does not provide for modification in the sense of severing the offending provisions but leaving the remainder of the agreement intact. We had some discussion on the principles of severance on the first day of the Report stage but I shall be interested to hear what the noble Lord has to say about that in this context. The power to give directions is not subject to any requirements to give notice to the persons affected before the direction is made. This prevents those affected from making representations on the need for fairness of the direction and the manner in which it will be implemented.

The third amendment in the group would require the director general to give such notice and to receive and to take account of any representations made. As it is currently drafted, the clause does not make it clear whether directions will come into effect before any right of appeal has been exercised. The fourth amendment, Amendment No. 124, would stay the effect of the direction until the time for making an appeal has expired and until an appeal had been determined or withdrawn or the person concerned had confirmed that no appeal was to be made. I think I have spoken sufficiently to the amendments. I beg to move.

5.30 p.m.

Lord Kingsland: My Lords, I wish to speak to Amendments Nos. 125 and 126. Clause 33 enables the Director General of Fair Trading or a regulator to apply to the court for an order to enforce a direction to end an infringement of the Chapter I and Chapter II prohibitions given under Clauses 31 or 32 where the undertaking to which that direction is addressed has failed to comply with its terms. In addition to imposing a liability on undertakings to comply with such a court order or risk being in contempt for failing to do so, and to meet the costs of the application for that order, Clause 33 also provides for the order and liability for costs to be directed at the officers of the undertaking personally.

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The competition law of the European Community is concerned with and directed at undertakings. It does not confuse public and private law issues and therefore does not provide for personal liability of this kind on the part of officers of an undertaking. These amendments would ensure that UK competition law is in line with the corresponding EC law, one of the Government's stated aims in relation to the Bill, by removing the provision which would impose personal liability on the officers of an undertaking.


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