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Lord Kingsland: If that is so, why does the Minister need to interpose the Treasury at all in this part of the Bill? Surely, if the authority, in implementing the recommended changes of the Director-General of Fair Trading and the Competition Commission, is constrained by the objectives of the Bill, then surely the Treasury has nothing to fear from seeing what they conclude is implemented--because, by definition, it can only be implemented within the objectives.

Lord McIntosh of Haringey: That is nearly always the case, but, as so often, we have to provide a reserve power because the Treasury has to pay attention to other wider implications, such as our international obligations, which must override any other domestic legislation.

Lord Kingsland: I knew that there must be an answer to that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 234:


The noble Lord said: I spoke to this amendment with Amendment No. 89. I beg to move.

On Question, amendment agreed to.

Clause 152, as amended, agreed to.

27 Mar 2000 : Column 597

Clause 153 [Consideration by Competition Commission]:

Lord McIntosh of Haringey moved Amendments Nos. 234A to 234F:


    Page 72, line 20, leave out ("consider") and insert ("investigate").


    Page 72, line 27, leave out ("whether, in the opinion of the Commission") and insert ("the Commission's conclusion as to whether").


    Page 72, line 30, leave out ("significant anti-competitive effect") and insert ("significantly adverse effect on competition").


    Page 72, line 34, leave out from ("section") to ("must") in line 35 and insert ("stating the Commission's conclusion that there is a significantly adverse effect on competition").


    Page 72, line 39, leave out ("opinion as to the action, if any, that") and insert ("conclusion as to what action, if any,").


    Page 72, line 42, leave out ("anti-competitive effect") and insert ("adverse effect on competition").On Question, amendment agreed to.

On Question, amendments agreed to.

[Amendment No. 234G not moved.]

Lord McIntosh of Haringey moved Amendments Nos. 234H and 234J:


    Page 73, line 3, leave out paragraphs (a) and (b) and insert ("its conclusions").


    Page 73, line 7, leave out ("that conclusion or opinion") and insert ("them").

On Question, amendments agreed to.

Clause 153, as amended, agreed to.

Clause 154 [Role of the Treasury]:

The Deputy Chairman of Committees, (Lord Dean of Harptree): I call Amendment No. 234K. I should point out that there is an error in this amendment. It should read "153(2)" and not "154(2)".

Lord McIntosh of Haringey moved Amendment No. 234K:


    Page 73, line 12, leave out from ("section") to end of line 13 and insert (" 154(2) which states its conclusion that there is a significantly adverse effect on competition").

The noble Lord said: This amendment was spoken to with Amendment No. 232. I beg to move, as corrected by the Deputy Chairman.

On Question, amendment agreed to.

[Amendment No. 234L not moved.]

Lord McIntosh of Haringey moved Amendments Nos. 234M to 234Q:


    Page 73, line 14, leave out ("opinion,") and insert ("conclusion,").


    Page 73, line 14, leave out ("anti-competitive effect") and insert ("adverse effect on competition").


    Page 73, line 24, leave out from ("to") to ("section") in line 25 and insert ("any conclusion of the Commission included in the report because of").


    Page 73, line 27, leave out ("anti-competitive effect") and insert ("adverse effect on competition").

The noble Lord said: These amendments have already been spoken to. I beg to move.

On Question, amendments agreed to.

27 Mar 2000 : Column 598

[Amendment No. 234R not moved.]

Clause 154, as amended, agreed to.

Schedule 13 agreed to.

Clause 155 [The Competition Act 1998]:

Lord McIntosh of Haringey moved Amendment No. 234S:


    Page 74, line 25, leave out ("is required or contemplated") and insert ("in the agreement is encouraged").

The noble Lord said: In moving Amendment No. 234S, I should like to speak also to Amendments Nos. 234T to 234X. At present the Bill excludes from the scope of the Competition Act agreements or conduct which is "required or contemplated" by FSA regulating provisions or practices. The wording of this exclusion is carried forward from the Financial Services Act 1986. The competition regime in that Act was cast originally against the background of legislation which has been replaced by the Competition Act 1998. However, the exclusion in the Bill for things "required" by FSA regulating provisions is not necessary. As I have said, this is already the effect of the Competition Act. These amendments therefore delete the exclusion for things required. This just removes unnecessary words.

We are also taking this opportunity to narrow the exclusion from the Competition Act for things contemplated by the FSA's regulating provisions. This is in response to Don Cruickshank's interim report on banking services in the United Kingdom, which recommended removing any unnecessary exclusions from domestic competition law. We think that there is merit in exclusion from the Competition Act going wider than "things solely required" of the FSA. This is because the FSA may issue guidance or codes of conduct which do not require anyone to do anything, but which indicate a course of action which the FSA thinks is the acceptable way of complying with the rule or with the statute. Guidance cannot require something to be done. If people act in accordance with options afforded in guidance or a code, then it would not be fair if they could be penalised under the Competition Act.

In addition, guidance which represents the FSA's considered view as to acceptable ways of complying with rules would be undermined if those who follow it could be penalised under the Competition Act for doing so. In the absence of a provision to the effect of the amendment, we think that the FSA would come under pressure to write a very prescriptive rule book, which I think that everybody is agreed would not be the best way to regulate. However, we think that the current exclusion goes too far. What might be contemplated by the FSA's regulating provision could be things which the FSA had not considered in any depth, if at all, when drawing up these provisions. This represents a wide exclusion from the Competition Act.

In the exclusion we want to cover things to which, in drawing up the regulatory provisions, the FSA has turned its mind. Don Cruickshank, in commenting on our proposals, welcomed this change. We are therefore cutting back the exclusion for things which are encouraged by FSA regulating provision.

27 Mar 2000 : Column 599

Finally, Amendments Nos. 234T, 234V and 234X, delete references to "practices". As drafted, the exclusion in the Bill covers things which are done as a result of the FSA's regulating provisions or practices. However, again we think that this goes too far. If people are encouraged to do something by the FSA regulatory provisions, which have been through the consultation process, and will have been the subject of cost-benefit analyses that is one thing, but where people do things as a result of FSA's practices, we do not think there should be an exclusion. It will be up to firms to decide what they do in response to practices. They are not obliged to do anything. Where they do something which is anti-competitive, there will be no protection from the Competition Act. That is the current position under the Financial Services Act and we are simply reverting to that. I beg to move.

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendments Nos. 234T to 234X:


    Page 74, line 26, leave out ("or practices").


    Page 74, line 29, leave out ("required or contemplated") and insert ("encouraged").


    Page 74, line 30, leave out ("or practices").


    Page 74, line 35, leave out ("required or contemplated") and insert ("encouraged").


    Page 74, line 36, leave out ("or practices").

On Question, amendments agreed to.

Clause 155, as amended, agreed.

Clause 156 [Authority's power to require information]:

The Earl of Northesk moved Amendment No. 234Y:


    Page 75, line 4, leave out ("in writing").

The noble Earl said: I beg to move Amendment No. 234Y. I hope that it will be for the convenience of the Committee if I confine myself to this amendment. My concern here is unrelated to the subject matter of the others in the grouping, to which my noble friends will speak in due course in their place on the Marshalled List.

I begin by reassuring the Minister that this is very much a probing amendment and confess that I ought to have spotted the point of concern rather earlier in the Bill's passage. Indeed, in the interests of consistency I could perhaps have trailed though all the Bill's 408 clauses and 19 schedules, to delete all instances where the words "in writing" appear. As a marginal defence, I suspect that the query that I have may be especially apposite in the context of the authority's information-gathering remit. None the less, I hope that the Minister and the Committee will excuse me for succumbing to the convenience at this stage of limiting myself to probing this single example.

My purpose is straightforward. I simply want to clarify that the mechanisms for communication within, to, and from the authority are consistent with the provisions of the Electronic Communications Bill; in effect, that the Bill is entirely e-commerce friendly. Using the specific example that I am probing here, it would seem that the authority is required to serve a

27 Mar 2000 : Column 600

notice on an authorised person for the information it requires exclusively in writing. Perhaps I am being too stupid, but there does not seem to be any facility for allowing the authority to achieve the same end electronically, although I note the phrasing of subsection (5) that information can be provided,


    "in such form as it [the authority] may reasonably require".

That may be the Government's expressed intention. It may even be that such an approach is appropriate in the context of this part of the Bill. But, as we all know, the Chancellor and the Government attach huge importance to speeding up the UK's progress towards an "e-shaped" economy. As we also all know, financial services are already well down that path. Accordingly, it is important to ensure that, where appropriate, facility for electronic communication is fully on the face of the Bill.

Perhaps I may therefore ask the Minister, in his absence, whether, in the context of this clause, it is the intention that the notices referred to should always be in writing--that is to say, paper based--or is it the intention that the drafting allows for an either/or interpretation that includes communication by electronic means? If the latter is the case, should not that be spelt out more clearly in the drafting? More generally, is the Minister satisfied, in his absence, that the whole Bill has been drafted to ensure that, where appropriate, facility to communicate electronically is explicit on its face?

I hope that the Government can give the Committee some comfort on these points. I beg to move.

9 p.m.

Lord Kingsland: I wonder whether this is an appropriate moment to speak to the other 17 amendments in the group.


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