Lord Fraser of Carmyllie moved Amendment No. 45:
Application to property ownership
After Clause 60, insert the following new clause--
(" . Nothing in this Act shall affect the law and practice governing the system of property ownership.").
Index of defined expressions
The noble and learned Lord said: My Lords, this amendment is grouped with Amendment No. 44 that we have just discussed. I welcome the approach that the Minister has taken. I know the importance that he attaches to giving an undertaking and I hope that that undertaking will be fulfilled. If Clause 60 is to be the subject of further and continuing discussions with the CBI, that is a satisfactory way forward. I do not think the noble Lord expressly addressed Amendment No. 45. I believe that
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amendment should be included on the face of the Bill. However, if he tells me that it will also form part of the discussions that he and his officials will undertake once the Bill leaves this House, I shall be satisfied with that. I beg to move.
Lord Brightman: My Lords, I beg your Lordships' pardon. I did not hear Amendment No. 47 called--
Lord Fraser of Carmyllie: My Lords, I hope I may clarify the position. My Amendment No. 45 was grouped with Amendment No. 44. Amendment No. 45 states that this Act shall in no way prejudice the rules in the United Kingdom,
"governing the system of property ownership".
This is in our view an important amendment. I had hoped to indicate to the Minister that if he will simply tell me that there will be continuing discussions on this matter, as he has done in relation to Clause 60, that will be sufficient for my purposes and I shall be happy to withdraw the amendment once I have that assurance.
Lord Simon of Highbury: My Lords, subsection (2) of the governing principles clause also refers to principles laid down by the EC Treaty. This is relevant to Amendment No. 45. This provides an express equivalent to Article 222 of the EC Treaty. This treaty article provides that nothing in the treaty is to affect the law and practice governing the system of property ownership. There is no need for such an express provision. Subsection (2) of Clause 60 expressly refers to the,
"principles laid down by the Treaty"
as being part of the EC jurisprudence which is imported. Since Articles 85 and 86 must be applied within the limits of Article 222, then so must the UK prohibitions. If we were to include an express equivalent to Article 222, then we would cast doubt on the importation of principles from other treaty articles. For example, as I said in Committee, the objective to promote the environment in Article 130 may be relevant in considering whether exemption can be granted. I believe that under these circumstances the noble and learned Lord has the assurance that he requires.
Lord Fraser of Carmyllie: My Lords, I compliment the noble Lord in stopping the ball just before it rolled over the boundary. That is the assurance I want. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Speaker: My Lords, I have to announce corrections to the voting figures for Division No. 2. The correct figures are as follows: Content 22; Not-Content, 92.
Clause 70 [Regulations, orders and rules]:
Lord Kingsland moved Amendment No. 46:
Page 39, line 4, after ("37(7),") insert--
("( ) section 51,").
The noble Lord said: My Lords, the amendment seeks to require that the rules and guidance made by the director under Clause 51 of the Bill shall be subject to an affirmative resolution of each House of Parliament.
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This is important statutory guidance. We believe that the House should have an opportunity to consider it and, if necessary, speak to it before it becomes binding. I beg to move.
Lord Haskel: My Lords, I cannot accept that the director's rules should be subject to the affirmative resolution procedure.
Perhaps I may refer your Lordships to the Select Committee on Delegated Powers and Deregulation which reported on the powers in the Bill on 5th November 1997. It expressed no concern that the powers in what is now Clause 51 should be subject to negative resolution procedure. Perhaps I may pray in aid the wisdom of your Lordships' Select Committee and ask the noble Lord, Lord Kingsland, to join me in doing the same.
Lord Kingsland: My Lords, on 99.9 per cent. of occasions I find the decisions of the committee to be extremely satisfactory. However, this is the one occasion when, with the utmost respect, I disagree.
The rules are absolutely fundamental to the individual human rights of the person to be regulated. This is the most important statutory guidance that will be made under the Bill. Yet unlike other parts of the Bill which are accorded affirmative resolution support, these are not.
I deplore the situation, but I recognise that the Minister's expression intimated deep intransigence on his behalf. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Brightman moved Amendment No. 47:
After Clause 74, insert the following new clause--
(" . In this Act the expressions listed below are defined by or otherwise fall to be construed in accordance with the provisions indicated--
|appeal tribunal||section 59(1)|
|appropriate court||sections 39(10) and 50(5)|
|Article 85||sections 59(1) and 61(1)|
|Article 86||sections 59(1) and 61(1)|
|authorised officer||section 61(1)|
|block exemption||sections 6(4) and 59(1)|
|block exemption order||sections 6(2) and 59(1)|
|the Chapter I prohibition||sections 2(8) and 59(1)|
|the Chapter II prohibition||sections 18(4) and 59(1)|
|the Commission||sections 59(1) and 61(1)|
|Commission investigation||section 61(1)|
|Commission official||sections 62(2) and 62(4)|
|Community prohibition||section 10(10)|
|conduct of minor significance||section 41(1)|
|the court||sections 59(1) and 60(5)|
|decision||sections 42(3) and 60(6)|
|designated person||section 55(4)|
|the Director||sections 59(1) and 61(1)|
|Director's finding||section 58(2)|
|Director's investigation||section 61(1)|
|Director's special investigation||section 61(1)|
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|dominant position||sections 18(3) and 19(3)|
|EEA agreement||section 59(1)|
|the European Court||section 59(1)|
|the High Court||section 31(3)|
|individual exemption||sections 4(2) and 59(1)|
|investigating officer||sections 28(1) and 59(1)|
|legal professional privilege||section 31(3)|
|Minister of the Crown||section 59(1)|
|named officer||sections 30(5) and 64(5)|
|notice period||section 7(4)|
|occupier||sections 30(5) and 64(5)|
|officer||sections 59(1) and 71(3)|
|parallel exemption||sections 10(3) and 59(1)|
|Part I proceedings||section 58(2)|
|penalty notice||section 38(2)|
|premises||sections 59(1) and 61(1)|
|prescribed||sections 59(1) and 61(1)|
|press diversity prohibition||section 19(4)|
|price fixing agreement||section 40(9)|
|privileged communication||section 31(2)|
|provisional immunity from penalties||section 42(5)|
|regulator||sections 54(1) and 59(1)|
|relevant decision||section 48(1)|
|relevant functions||section 55(4)|
|relevant party||section 58(2)|
|section 11 exemption||sections 11(3) and 59(1)|
|small agreement||section 40(1)|
|specified||sections 6(8), 53(3) and 55(6)|
|specified date||section 38(2)|
|specified document||section 27(4)|
|the United Kingdom||sections 2(7) and 18(3)|
|withdrawal date||sections 40(6) and 41(6).")|
The noble and learned Lord said: My Lords, my purpose in moving the amendment is to suggest that this important Bill would be more user friendly if it contained at the end a simple index of the words and phrases which are given a special meaning.
I raised this point with the Minister last December. In a letter to me he indicated that it was an interesting issue relevant to legislation in general and worthy of debate. I suggested that the best time for me to move the amendment might be at Third Reading when most of the major issues might be out of the way.
An index has two advantages. First, it tells the reader at a glance whether a particular expression used in an Act has a special meaning. Secondly, it tells the reader at a glance where in the Act that special meaning is to be found. Let me give an example. Clause 27 of the Bill empowers the director general, when conducting an investigation, to require a person to produce a document that he specifies. That is no problem. We all know what the word "document" means--or do we? Perhaps a "document" has some special meaning in the Bill. The reader can turn to the index to find out. He immediately discovers that it has a special meaning because the word is listed in the left-hand column of the index. Where can he find that special meaning? The right-hand column of the index immediately tells him: Clause 59. He sees there that "document" includes not only written matter
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but also, for example, a tape recording or a floppy disk, neither of which is within the dictionary definition of document.
Another useful function performed by an index arises when the same word is given different meanings in different clauses of the Act. For example, Clause 35 empowers the court to make an order for costs against an "officer" of a company. Clause 59 defines an "officer" for the purposes of this clause as including a director, manager or secretary.
But let us suppose that someone who is not really the secretary of the company purports to act as secretary. Let us say that he signs letters and so forth as though he were the secretary. Can an order for costs be made against a person who purports to act as secretary? It would not be in the least surprising if it could. It seems a rather difficult point.
If the Act contains an index of defined expressions, the answer is easy. The index shows that "officer" of a company is defined in two different sections, with different meanings. One definition is to be found in Clause 59 in relation to a costs order under Clause 35. That is, it includes a director, manager or secretary. The other definition is in Clause 71 which defines "officer" in relation to certain criminal liability clauses as meaning director, manager or secretary or a person who purports to act as such. It therefore becomes clear that no costs order can be made against a person who purports to act as a director, manager or secretary because the second definition makes it abundantly clear that when "officer" is meant to include a person purporting to act as an officer, the Act says so.
In the absence of an index of defined expressions, I simply do not know how the reader of the costs clause can be expected to appreciate that "officer" in that clause does not include a person who merely purports to act as an officer, unless he reads through the whole Act down to Section 71. If a word or expression is used in an Act with different meanings, it may be essential for the reader to study and compare both definitions to be certain what each means. Only an index can alert the reader to the fact that there are two different definitions.
The idea of including in an Act an index of defined expressions is not new. It has been used on a number of occasions over the past 23 years. It is obvious that it is not appropriate for all Acts of Parliament. It depends on the Act, notably how complicated the Act is, and how many defined words and expressions it contains. The matter must clearly be judged on a case-by-case basis. However, in my respectful submission, the question must always be this: will an index be useful to the reader, and sufficiently useful to justify its incorporation in the Act?
I wish to deal with one objection to an index which is sometimes raised. I have heard it suggested that an Act of Parliament ought not to contain matter which has no legislative effect. One can see the logic of that objection. But does it really stand up to examination? Every Act contains marginal notes against sections. A
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marginal note has no legislative effect. It is inserted for the convenience of the reader. If a marginal note is permissible, why not an index?
An index of defined expressions is coming into increasing use in heavy Bills. There are no fewer than three Bills now going through the other place which have just such an index as I am proposing for the Competition Bill. They are: the Government of Wales Bill, with 35 defined expressions; the Scotland Bill, with 44; and the school standards Bill, with 58. Each of those Bills contains an index of defined expressions similar to that which I propose for the Competition Bill. The Competition Bill has, in fact, 59 defined expressions.
There is also a fourth Bill, the Data Protection Bill, which is at this very moment being taken through this House by the noble Lord, Lord Williams of Mostyn. That has 38 defined expressions, which are collected together in an index. I ask myself: why should the reader of the Data Protection Act have the advantage of an index of defined expressions, while the reader of the Competition Bill, with more sections and more defined expressions, is denied that advantage? Is it right, in the case of a long and complicated Bill, that we should sometimes help the reader and sometimes we should not? If an index is appropriate for the Data Protection Act, why is it not appropriate for the Competition Act? I beg to move.