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Lord Haskel moved Amendment No. 159B:


Page 24, line 41, leave out from ("section") to end of line 43 and insert ("he must consult such persons as he considers appropriate.
( ) If the proposed rules relate to a matter in respect of which a regulator exercises concurrent jurisdiction, those consulted must include that regulator.").

The noble Lord said: My Lords, we spoke to this amendment when it was grouped with Amendment No. 135B and we considered it on day two. I beg to move.

On Question, amendment agreed to.

Schedule 9 [Director's Rules]:

Lord Haskel moved Amendments Nos. 160 to 162:


Page 68, line 2, after first ("the") insert ("documents and").
Page 68, leave out lines 24 and 25.
Page 69, line 30, at end insert--

("Directions withdrawing exclusions

. Rules may make provision as to the factors which the Director may take into account when he is determining the date on which a direction given under paragraph 4(1) of Schedule 1 or paragraph 1A(3) or 6A(3) of Schedule 3 is to have effect.").

The noble Lord said: My Lords, we spoke to these amendments with other amendments on day two. With the leave of the House I shall move them en bloc. I beg to move.

On Question, amendments agreed to.

Lord Simon of Highbury moved Amendment No. 162A:


Page 69, line 30, at end insert--

("Disclosure of information

.--(1) Rules may make provision as to the circumstances in which the Director is to be required, before disclosing information given to him by a third party in connection with the exercise of any of the Director's functions under Part I, to give notice, and an opportunity to make representations, to the third party.
(2) In relation to the agreement (or conduct) concerned, "third party" means a person who is not a party to the agreement (or who has not engaged in the conduct).").

The noble Lord said: My Lords, we brought forward this amendment in response to points made in Committee about the need to warn third parties before publishing information which they had disclosed to the director.

The question of the protection of information obtained under the Bill is obviously an important one. We shall debate it further later. It was debated at length in Committee and there are later amendments tabled which relate to the same issue. We have, of course, taken great care in framing the provisions in the Bill which restrict the disclosure of information. However, we felt that there was considerable force in the argument put to us in Committee that third parties should be forewarned before the director published information provided by them. In particular, my noble friend Lord Graham spoke of a,


    "procedure whereby the director who intends to disclose confidential information would advise a third party of his intention before the information was published".--[Official Report, 25/11/97; col. 954.]

My noble friend Lord Haskel undertook to reflect on that point.

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We concluded, in the light of the debate in Committee, that it is right that there should be some procedure for third parties along those lines. The amendment therefore makes clear on the face of the Bill that the director's rules may include provisions requiring that he give notice, and an opportunity to make representations, to third parties, before disclosing information which they provided.

The opportunity to make representations is something which was not specifically discussed in Committee, but the Government believe that it would be a useful further safeguard. It would give third parties an opportunity to put to the director any objections they have to particular information being disclosed. The precise details are a matter to be dealt with in preparing the rules, which are of course subject to annulment by either House. There may be some circumstances in which it would not be right for notice and representation procedures to have to apply; for example, where it is necessary for the director to act very quickly. However, it is the Government's clear intention that the director's rules will include rights for third parties of the kind I have explained. I beg to move.

Baroness Nicol: My Lords, I welcome the amendment, which responds to some of the worries we raised at an earlier stage. We shall return to the edges of this subject a little later on. In the meantime, I am grateful for the amendment.

Baroness O'Cathain: My Lords, I welcome the amendment but wish to ask a question. It states:


    "Rules may make provision as to the circumstances in which the Director is to be required"

Why not say that rules "will" make provision?

Lord Borrie: My Lords, I welcome the amendment, but the issue raises a question in my mind. The third party is usually what one might call the complainant, who is alleging that there is a cartel agreement or some conduct which the director ought to examine. In providing confidential information the amendment is wholly desirable in that he will be consulted before that confidential information which may disclose the identity of the complainant is made known. But one of the other things the complainant may wish to know--indeed, it may be helpful to the director--is the response of the person against whom it is alleged that he has engaged in a prohibited agreement or has engaged in prohibited anti-competitive conduct. I do not see in the amendment any obligation on the director general to disclose back to the complainant the response that has been made so that he may answer it. I wonder whether that is catered for somewhere else. It is surely something in which the complainant will be interested.

Lord Simon of Highbury: My Lords, perhaps I may respond, first, to the issue of "may" and "will". I have stated--I hope clearly--that it is the Government's intention that the rules will include rights for third parties in relation to notice and opportunities to make representations. That is a clear commitment to the House. However, the precise details are best left to rules.

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We need to be careful not to write into the Bill something which will make the director's job impossible in certain circumstances. The new provisions as drafted retain the flexibility needed to address such points in the detailed rules. However, there will be rules on this matter and those rules will be subject to consultation and parliamentary scrutiny. I hope that that assurance is sufficient to meet the noble Baroness's query.

Perhaps I may turn to whether there is a reconsulting process with the director general. This has not been stipulated, but it is a query to which I pay strong attention and I shall return to the matter with the noble Lord.

On Question, amendment agreed to.

Lord Haskel moved Amendment No. 163:


Page 69, line 45, at beginning insert ("the documents and").

The noble Lord said: My Lords, we considered this amendment on day one, when it was grouped with Amendment No. 32. I beg to move.

On Question, amendment agreed to.

Clause 50 [Advice and information]:

[Amendment No. 164 not moved.]

Lord Haskel moved Amendments Nos. 164A and 164B:


Page 25, line 36, leave out from ("section") to end of line 37 and insert ("he must consult such persons as he considers appropriate.
( ) If the proposed advice or information relates to a matter in respect of which a regulator exercises concurrent jurisdiction, those consulted must include that regulator.").
Page 25, line 42, at end insert ("; and
(c) such other persons as he considers appropriate.").

The noble Lord said: My Lords, we considered these amendments when we debated Amendment No. 135B on day two. I beg to move.

On Question, amendments agreed to.

Clause 51 [Fees]:

Lord Simon of Highbury moved Amendment No. 164C:


Page 26, line 1, leave out subsections (2) and (3) and insert--
("(2) Rules may, in particular, provide--
(a) for the amount of any fee to be calculated by reference to matters which may include--
(i) the turnover of any party to an agreement (determined in such manner as may be specified);
(ii) the turnover of a person whose conduct the Director is to consider (determined in that way);
(b) for different amounts to be specified in connection with different functions;
(c) for the repayment by the Director of the whole or part of a fee in specified circumstances;
(d) that an application or notice is not to be regarded as duly made or given unless the appropriate fee is paid.
(3) In this section--
(a) "rules" means rules made by the Director under section 49; and
(b) "specified" means specified in rules.").

The noble Lord said: My Lords, as my noble friend Lord Haskel explained in Committee (at col. 907 of the Official Report on 25th November) it was put to us

23 Feb 1998 : Column 469

when we consulted on the draft Bill that it might be useful if fees could be set in relation to a person's ability to pay. This amendment would enable that to be done. I should say that Ministers have not decided that the power to charge fees on any basis should be exercised, but we agree it would be useful were the director to have this additional option of setting fees by reference to a person's turnover. Any rules to set fees would be made by the director under Clause 49. They would therefore require to be approved by order by the Secretary of State before coming into operation and could be modified, varied or revoked by the Secretary of State as provided for in that clause. The order would be subject to annulment by resolution of either House of Parliament.

The amendment amends Clause 51 in two further ways. First, it provides that the rules may make provision for the repayment of the fee in whole or in part by the director in specified circumstances. This might be appropriate, for example, where a fee was set for the giving of guidance on an agreement and the application was withdrawn shortly after it was made. Secondly, the amendment provides that the rules may provide that an application or notice is not to be regarded as duly made or given unless the appropriate fee is paid. I beg to move.


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