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Lord Kingsland moved Amendment No. 140:


Page 56, line 27, leave out ("Secretary of State") and insert ("Lord Chancellor in consultation with the Lord Advocate").

The noble Lord said: My Lords, as a result of the eloquent and thorough way in which my noble and learned friend Lord Fraser of Carmyllie dealt with the previous amendment, I have little to say in support of Amendment No. 140.

It must follow, from the philosophy that there should be a clear distinction between the appeals panel and the general panel of the competition commission, that somebody other than the person who appoints the general panel should appoint the appeals panel. That is the logic behind replacing the Secretary of State for Trade and Industry with the Lord Chancellor. That seems especially appropriate in the light of the remarks I made in support of my earlier amendments relating to the competition court.

The responsibilities of the appeals tribunal are to apply the law of the land particularly in relation to procedural appeal. It seems therefore appropriate to give those undertakings that might be before the tribunal confidence in its jurisdiction and its jurisprudence that the president and its members are appointed in the way in which High Court judges are appointed. I add, though it is not in the amendment, that the president ought to be somebody who is either a High Court judge or has the equivalent merit and seniority. I beg to move.

Lord Haskel: My Lords, the Bill provides for the Secretary of State for Trade and Industry to appoint the members of the appeals tribunal. In the case of persons qualified for appointment to the panel of tribunal chairmen, she is required to do that in consultation with the Lord Chancellor.

By its nature, the tribunal will have to deal with complex economic and commercial issues. Many of the arguments which we discussed in the previous group of amendments apply here. The Government take the view that the Secretary of State for Trade and Industry will be well placed to identify and select candidates with the necessary blend and breadth of experience to lead such a tribunal. At the same time, it is equally important that the president and chairmen are legally qualified and have the necessary legal experience and standing to do the job. Confidence in the new regime demands nothing less. That is why she is required to consult with the Lord Chancellor.

The Bill does, of course, set out strict requirements for formal legal qualifications. We believe that this is the right balance of responsibilities to ensure that we get

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the right people for the job, and indeed the Government are very well aware of the crucial importance of doing that.

The quality and standing of the tribunal members, and particularly of the president, are central to confidence in the new appeal regime. The Government fully recognise the importance of finding the right people. We believe that the arrangements we have put in place will enable us to achieve that.

I am grateful to the noble Lord, Lord Kingsland, for explaining his views and for giving me the opportunity to explain ours. Having done so, I hope that he will be prepared to withdraw his amendment.

Lord Kingsland: My Lords, it will not surprise the noble Lord, Lord Haskel, to hear that I am deeply disappointed by his reply. I shall of course reflect on what he said, but we cannot exclude the possibility that this matter will re-emerge at Third Reading. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7.30 p.m.

Lord Ezra moved Amendment No. 141:


Page 56, line 28, at end insert ("at least one of whom shall have experience in and knowledge of consumer affairs").

The noble Lord said: My Lords, this amendment has been grouped with Amendments Nos. 142 and 164. We are here dealing with the interests of consumers. I raised this matter in a different manner at the Committee stage. I now come to it with three specific proposals. Although it can be argued that the Bill as a whole deals with safeguarding consumer interests, nevertheless, there is little specific reference to consumers in the document. I wish to remedy that omission.

Amendments Nos. 141 and 142 propose that, in regard to the commission panels dealing with appeals and with general functions, at least one of those appointed by the Secretary of State shall have experience in and knowledge of consumer affairs. We think that is important because the consumer interest could well be lost sight of in pursuing a purely legalistic approach to these matters.

The third proposition, Amendment No. 164, inserts the proposal that the director general should indicate how he intends to assess that consumers have a fair share of the resulting benefit of the decisions he takes under this part. We think that is important. The form of words is reflected in one of the few references to consumers on page 5, line 41, of the Bill. That is the same form of words and I think it is perfectly right that we should reintroduce it. I beg to move.

Lord Borrie: My Lords, I support the noble Lord, Lord Ezra, in his thoughts on the importance of having someone experienced in and knowledgeable of consumer affairs, whether it be in the reporting function or the appeal function. However, although, like him, I have had a background of considerable involvement in consumer affairs and recognise how unfortunate it would be if people representative of consumer affairs

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were not involved in key decisions relating to trade and industry, I cannot support his amendments. The logic of the amendment would surely immediately suggest the need to have representatives of small and medium-sized enterprises, the public sector, the utilities and so on. Claims would be made as to how vital it was to have these various important areas of industry and commerce represented and so the particular value of the thoughts behind the amendments would be lost in the rush of others who would make special claims.

Lord Simon of Highbury: My Lords, I understand the concern of the noble Lord, Lord Ezra, to ensure that consumer interests are properly represented in the reforms we are seeking to put in place. I endorse strongly his views; indeed, we have emphasised, as we have gone through the debates on the Bill, that a better deal for consumers is fundamental as an objective underpinning the Bill.

Amendments Nos. 141 and 142 concern the membership of the appeal and reporting panels of the competition commission. My noble friend Lord Haskel touched on this subject when we were in Committee. He pointed out that there is nothing in the Bill to prevent people being appointed to the appeal tribunal panel and sitting on tribunals to hear appeals on the basis that they have a particular expertise in consumer matters.

Perhaps I may expand a little on this basic point. The Government will expect to appoint to the appeal panel on the basis of merit, according to the Nolan guidelines, and we would expect to draw from a range of backgrounds, including consumer affairs, if candidates with the necessary skills were available. I am not assuming that they will not be. I assure the noble Lord that the Government will give careful consideration to appointing to the appeal panel members with that kind of background. We should like to be able to do so provided the right candidates are available.

As for the reporting panel, we are not seeking to make substantive changes to the arrangements for the existing functions of the MMC. The arrangements for appointments are carried over substantially unchanged into the new competition commission. Currently, members are appointed on merit, according to the Nolan guidelines, and on the basis of transparent criteria. They come from a range of backgrounds, as my noble friend Lord Borrie said, including consumer affairs. We would expect that approach to continue.

The difficulty with the amendments, apart from that pointed out by my noble friend Lord Borrie, is that they as well place an absolute requirement on the Secretary of State to appoint someone with a consumer affairs background. We could not accept that requirement for the simple reason that candidates with the necessary skills may not be available. It would be wrong to appoint people solely on the basis that they had a consumer affairs background if they did not also have the other attributes necessary to serve on the panels. It is really a point of the sine qua non element. We think that there are all the flexibilities here to appoint the right category of consumer representatives, if they are available. I hope the noble Lord will accept that point

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and, bearing in mind what I have said about our willingness to appoint the kind of people that he has in mind, will be prepared to withdraw the amendment.

Perhaps I may speak briefly to Amendment No. 164. The assessment that consumers have a fair share of the resulting benefit is an essential element of the criteria for exemption in Clause 9. No doubt the director will address the question of consumer benefit in that part of his advice and information dealing with the exemption decisions. However, it would not be appropriate to require him, as the amendment seems to do, to address consumer benefits across the range of his other decisions. Here he will be following EU jurisprudence, according to the governing principles in Clause 58, and the consumer benefit comes from a more effective protection of competition, not from direct assessment in individual decisions.

In Committee the noble Lord said that it was important that consumer groups should be consulted on the director's advice and information. I am grateful for the points he made in that respect. The director general's letter, which I mentioned earlier, confirms that consumer bodies such as the National Consumer Council and the Consumers' Association as well as the trading standards organisation will be contacted as part of the consultation.

Amendments Nos. 164A and 164B (which we debated earlier), will make consultation on advice and information a requirement. Consumer interests will therefore have an opportunity to comment formally if they do not believe that the advice and information covers all the necessary points.

I believe that I have addressed the three amendments as positively as I can without changing what is on the face of the Bill. With that explanation, I hope that the noble Lord will be prepared to withdraw the amendment.


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