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Lord Borrie: My Lords, at this hour I will not delay the House because I am sure that we would like to hear the Minister. I believe that the noble and learned Lord, Lord Fraser, in his usual charming and helpful way, has made some fundamental errors as regards the way in which the Government have sought and explained throughout the debates on this Bill how they see its purposes in relation to European law. For example, he has ignored the differences between substantive law and procedural law. He has ignored the fact that in the set-up for the United Kingdom we have the Director General of Fair Trading and the other regulators. We also have the commission on appeal. We have a structure, system and procedures which are not precisely the same as in the European Union. Therefore, it is inevitable that one has to use words like "as far as possible" and others of that kind. I shall not elaborate further on the speech that I was most interested to hear, because, like everyone else, I would like to hear from the Minister, too.

Lord Kingsland: My Lords, I had not intended to intervene in this phase of the debate until I heard the noble Lord, Lord Borrie. He is quite wrong in accusing my noble and learned friend Lord Fraser of clouding the issue because it is perfectly straightforward. Either Her Majesty's Government intend the procedural jurisprudence of the European Court of Justice to apply to our own competition law or they do not. It is not clear on the face of the Bill because it refers to decisions of the court. The court makes many decisions on procedure, remedies and third party rights. As the Bill stands, we do not know to what extent they apply. These are important matters. We need to be clear that we understand exactly what the Government's interpretation is; otherwise we are not in a position to draw sensible conclusions about many other clauses. The noble and learned Lord, Lord Fraser, mentioned Clauses 34 and 35 of the Bill. I shall add to that Clause 36 on third party rights.

Lord Simon of Highbury: My Lords, in the spirit of the hour and the way this debate on Clause 58 is developing and which is absolutely crucial, I do not believe that I need to refer extensively to the amendments that have been tabled. I could but I shall not because, first, I appreciate the way in which the Opposition have credited me with listening so far during the course of this Bill and, secondly, I wish to make clear that I have listened to their last statements. So I am not going to go into the amendments. I shall, however, comment on the general proposition that is being put to me, as I understand it. It is that the construction of Clause 58 is confusing. I understand the proposition but I cannot agree. As I said in Committee, the purpose of the governing principles is to ensure that as far as possible the UK prohibitions are interpreted and developed consistent with EC prohibitions. That is of crucial importance in minimising the burdens on business. They already deal with EC prohibitions that

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have applied in the UK for over 20 years. We must seek to maintain the domestic prohibitions on parallel tracks. That is the purpose of Clause 58.

The noble and learned Lord, Lord Fraser, is, I know, a highly professional and extremely well-trained lawyer in his own right. He said to me that he finds the clause confusing. As a mere businessman my problem is that I thought it was clear. Therefore, I am left with something of a problem, which is the statements which purport to bring across the fundamental prohibitions. In my previous life I dealt with them for 20 years. I did not find much difficulty in understanding them because I believe that most businessmen understand what an abuse is. In my view much difficulty has been made of the complexity of this notion. I do not think that it is so complex for most businessmen. Therefore, when reading the clause, I believe that I would have understood that it carries across into our law the basis of the law which I have had to consider for 20 years when conducting my international business. I thought that it was clear.

There must be some doubts in the minds of the Opposition--doubts which they have not in any way reflected in their discussion on the amendments, which I appreciate--and, from a very legal construct, doubts about the relationship of this clause to other parts of the Bill. We have had a clear statement from my noble friend Lord Borrie that we have to differentiate between the fundamental construct of the law, the procedural aspects and the rules flowing from that. Indeed, this is a different argument from the clarity of Clause 58 in carrying across the jurisprudence and the construct of European law. The point is well taken that those are two different issues. I do not want to go into the issue of procedural coherence as opposed to the coherence of Clause 58. They are different debates and they can be taken one by one, as we have taken them. I want to stick with the view that has been proposed that Clause 58 is not clear in carrying across the basic body of jurisprudence in Europe.

I shall reflect carefully on the general statement that has been made because it has been made by an eminent lawyer and if, on a careful reading of the text, I find that this is a real problem rather than a construct about how procedure flows, I shall reconsider whether I can say anything further to elucidate what I take to be a clear clause to help the noble and learned Lord in this matter. I shall attend to that, but I can give no promises at this stage because I must reflect carefully on the noble and learned Lord's confusion.

10.30 p.m.

Lord Fraser of Carmyllie: My Lords, the noble Lord might now find that this will take a little longer to resolve, because it is not a confusion that I have; it is a confusion of the Confederation of British Industry and it is a difficulty which one of the most prominent law firms in the City has. It is not a matter to be dealt with too lightly. I thought that I had taken the trouble, as briefly as I could, to summarise an argument that I believe requires a serious answer. As I have not had a serious answer, I now intend to go over it so that the noble Lord can reflect on it at his leisure.

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In my opening remarks, I pointed first to Clause 49(1), which states:

    "The Director may make such rules about procedural and other matters in connection with the carrying into effect of the provisions of this Part as he considers appropriate".

I commented that if that were to be a solely domestic provision, with no reference to any other jurisprudence or legal system, it would be a perfectly standard and obvious provision to include in the Bill. However, I am invited to look to the whole of the Bill against the provision of Clause 58. The difficulty seems to arise because the European Community has developed both its procedural and remedial rules not, as we might sometimes see it, simply from a procedural basis but from fundamental principles derived from the treaty itself. If the noble Lord wishes to write to me before Third Reading to tell me that with regard to Clause 58 we in the United Kingdom shall never have to look to the jurisprudence of the ECJ (and all the other decisions attaching to that primary source), I would be very satisfied.

More importantly, there are very prominent lawyers in the City who have entered into this debate, not in any childish way or for any short-term, narrow party-political reasons, but because they are concerned that the competition law of the United Kingdom should be as clear and as lucid as possible. I have no doubt that they would be even more interested to hear the noble Lord's answer. If that is the course that he contemplates I hope that he will spell out that neither procedural nor remedial matters are to be construed in the context of Clause 58 and explain in the fullest possible detail the legal basis on which he reaches that conclusion. If he does so I doubt that your Lordships will have time to return to this matter, but because of the broad concern, not hostility that Clause 58 should be as clear as possible it would be helpful if the Minister could provide me with that information, and preferably before we reach Third Reading. I beg leave to withdraw Amendment No.191.

Amendment, by leave, withdraw.

[Amendments Nos. 192 to 198B not moved.]

The Deputy Speaker (Baroness Hooper): My Lords, there is a printing error in the Marshalled list. Therefore, I must call Amendment No.199 before Amendment No.199A. In doing so, I draw to the attention of noble Lords that if Amendment No. 199 is agreed to Amendment No.199A is pre-empted.

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

Lord Haskel moved Amendment No. 199:

Page 30, line 38, leave out from beginning to ("by") in line 39 and insert ("A judge of the High Court may issue a warrant if satisfied, on an application made to the High Court in accordance with rules of court").

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

On Question, amendment agreed to.

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[Amendments Nos.199A and 199B not moved.]

Lord Haskel moved Amendment No. 200:

Page 31, line 5, at end insert--
("( ) A Commission investigation is also being obstructed if there are reasonable grounds for suspecting that there are books or records on the premises--
(a) the production of which has been required by an official of the Commission exercising his power in accordance with the provision under which the investigation is being conducted; and
(b) which have not been produced as required.").

The noble Lord said: My Lords, I beg to move Amendment No. 200 and speak also to Amendments Nos. 203 and 210. These amendments ensure that the provisions concerning warrants issued in relation to investigations concerning Articles 85 and 86 of the EC Treaty reflect the corresponding provisions relating to investigations under the domestic regime. It is our intention that the procedures set out in Part II should be equivalent to those proposed for domestic investigations in this Bill with differences only to reflect the different nature of the investigation at issue. It makes administrative and regulatory sense for similar procedures to be available to ensure that a competition investigation can be conducted effectively irrespective of whether an EC or domestic competition investigation is taking place.

On Question, amendment agreed to.

[Amendments Nos. 200A and 200B not moved.]

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