§ It being Ten o'clock, the debate stood adjourned.
§
Motion made, and Question put forthwith, pursuant to Standing Order No. 15 (Exempted business),
That, at this day's sitting, the Competition Bill [Lords] may be proceeded with, though opposed, until any hour.—[Mr. Betts.]
§ Question agreed to.
§ As amended (in the Standing Committee), again considered.
§ Question again proposed, That the amendment be made.
§ Mr. LansleyIn Committee, Ministers said that they had no intention of using the paragraph 7 provision, and two questions arise in relation to that. First, if there is no intention to use the provision, why have it? Secondly, if it is intended to be used, under what circumstances will it be used?
I was struck by the debate on "exceptional and compelling". Ministers took great pains to stress how high the test of exceptional and compelling would have to be before Ministers were convinced that it would be right to use the provision—and they said that they had no intention of using it. About two weeks ago, during debate on the Human Rights Bill, there was a question about the circumstances under which Ministers should use a statutory instrument to amend primary legislation rather than waiting for an opportunity to change it by primary legislation.
There were two competing arguments about the circumstances in which Ministers should resort to this Henry VIII measure. The first was under compelling reasons, and the second was under exceptional reasons. As we had recently debated "exceptional and compelling", I told the Home Secretary that Ministers in the Department of Trade and Industry had used the phrase "exceptional and compelling" and regarded it as the appropriate high test. I asked whether it would be an appropriate test in that context.
The Home Secretary has no function to defend Trade and Industry Ministers and, with his customary perspicacity, asked why, if their intention was not to use it, they were proposing it. That is precisely the question. The paragraph 7 provision has no parallel in the treaty on European union, so under what circumstances do Ministers propose to use it? If they do not intend to use it, why not accept the amendment and delete it?
§ Mr. Nigel GriffithsI cannot accept amendment No. 6 to delete paragraph 4 of schedule 3, which contains a limited exclusion that is drawn from article 90 (2) of the EC treaty. Including article 92 will mean that the activities that benefit from that article in relation to articles 85 and 86 will not be put in a less favourable position with respect to domestic prohibitions.
It is important to appreciate that article 90 (2) has been interpreted as providing only a limited derogation from the competition rules, and that its definitions are to be strictly interpreted. By virtue of clause 60, we are applying that jurisprudence, which means that the same will be true of the exclusion in paragraph 4 of schedule 3.
Revenue-producing monopolies are undertakings that have been granted monopolies by the state to raise money for the state. When this matter was raised in Committee, 1175 we mentioned some European countries that have such monopolies, and we agreed with the hon. Member for Daventry (Mr. Boswell) that tobacco was one instance and alcohol was another. In that instance, it is clear that the application of the exclusion will be limited. In such circumstances, we believe that it is entirely right that the prohibitions should be disapplied. Otherwise, the purpose of the act of public authority that entrusted the undertaking with the service would be frustrated.
Let me give some examples of the services that a vote on the amendments would put in jeopardy. They include not just some of the public utility networks, but uniform letter pricing. Is it the real intention of the Opposition to threaten uniform postal pricing and to make it very difficult for many people living in rural and remote areas to post a letter at the same price that people enjoy in the capital city and in major conurbations? That is the effect of amendment No. 6.
I hardly think that that can have escaped the notice of the right hon. Member for Wokingham (Mr. Redwood). I believe that that is a hidden way in which to try to drive a coach and horses through uniform letter pricing and to open it to the private sector, which could greatly damage rural and other areas that require uniform letter pricing. It must be a viable service. I wish just that he had come clean on that.
On amendment No. 51, by its nature the power in paragraph 7 could be exercised only in rare circumstances. Before its exercise, the Secretary of State must be satisfied that there are "exceptional and compelling" reasons of public policy for her to act. That is a high hurdle to surmount. The power is, in that sense, a "reserve" power.
Not surprisingly, we have no present plans to exercise the power. However, if there are grounds to exercise the power, it should be available to us. The hon. Member for South Cambridgeshire (Mr. Lansley) may at some point feel that there are exceptional and compelling reasons of public policy why the prohibitions should not be applied, but this amendment would ensure that they would nevertheless apply. That cannot be right.
The power in paragraph 7 is a necessary safeguard. I note that the previous Administration also considered the power necessary, as it was included in the draft Bill that they published in August 1996. I urge the right hon. Member for Wokingham to withdraw his amendment.
§ Mr. RedwoodThe Minister should know that the Opposition's policy is to maintain a uniform tariff for a national postal service. We have made that clear, and we have no intention tonight of undermining or destroying that. We believe that it is possible to guarantee that system, which I believe is favoured by hon. Members on both sides of the House, by a director general exemption, or even perhaps by using the public policy power; I am sure that my hon. Friend the Member for South Cambridgeshire (Mr. Lansley) will not wish to press his amendment to a vote.
It is our case that having both the public policy power and this rubric about services of general economic interest weakens the Bill too much, and that this could be handled easily by one or the other. The Minister has to agree that if the postal system cannot be accommodated under other parts of the Bill where we think that it can, it could certainly 1176 be accommodated under the public policy power, and should be accommodated as quickly as possible, so that there is no doubt.
§ Mr. Nigel GriffithsIf that is the case, why did the right hon. Gentleman and his hon. Friends not table an amendment that would protect our uniform letter pricing service? They have not done so, and passing the amendment would threaten that vital service.
§ Mr. RedwoodI have just told the Minister how it is very easy to accommodate our mutual wish. He is a member of the Government, for heaven's sake. He is the one who has to sort out all the consequences of our important debates on the big principles of the Bill. I have told him that the Opposition would give a fair wind to anything that did that. Given his majority, I think that he could probably do it even without that Opposition guarantee, but it has been and remains Opposition policy to support the current national tariff for the postal system. There are many ways in which to accommodate it under the Bill—through director general rules or other exemption powers in the Bill—without needing this enormous blockbuster of paragraph 4 to schedule 3.
I am not persuaded by what the Under-Secretary has said. I find it odd that British legislation should be framed to exempt a continental tobacco monopoly. We do not have tobacco monopolies in this country, so there is no need to make special provision for them in British law. However, we do have other types of services of general economic interest or revenue-producing monopolies. The Under-Secretary cannot be sure how the courts will construe these phrases. Despite clause 60, there is always the danger that they will be construed in other ways.
It would be much safer, and would produce better competition legislation, if this very general clause were struck out. If it is only about continental tobacco monopolies, nothing will be lost; if it is there to protect real monopolies in Britain, we do not want it. I have already told the House how the one example that the Under-Secretary has produced, where we are in agreement, can be accommodated in other ways
With the permission of my hon. Friend the Member for South Cambridgeshire, I suggest that we do not press his amendment to a vote, but that we should vote on this fundamental issue of whether the Bill should be heavily diluted by paragraph 4 of schedule 3.
§ Question put, That the amendment be made:—
§ The House divided: Ayes 117, Noes 291.
1179| Division No. 332] | [10.10 pm |
| AYES | |
| Ainsworth, Peter (E Surrey) | Bruce, Ian (S Dorset) |
| Amess, David | Burns, Simon |
| Ancram, Rt Hon Michael | Cash, William |
| Arbuthnot, James | Chapman, Sir Sydney (Chipping Barnet) |
| Atkinson, David (Bour'mth E) | |
| Beggs, Roy | Chope, Christopher |
| Beresford, Sir Paul | Clappison, James |
| Body, Sir Richard | Clark, Rt Hon Alan (Kensington) |
| Boswell, Tim | Collins, Tim |
| Bottomley, Peter (Worthing W) | Cran, James |
| Bottomley, Rt Hon Mrs Virginia | Curry, Rt Hon David |
| Brazier, Julian | Davies, Quentin (Grantham) |
| Brooke, Rt Hon Peter | Davis, Rt Hon David (Haltemprice) |
| Browning, Mrs Angela | Donaldson, Jeffrey |
| Dorrell, Rt Hon Stephen | Mates, Michael |
| Duncan, Alan | Mawhinney, Rt Hon Sir Brian |
| Duncan Smith, Iain | May, Mrs Theresa |
| Evans, Nigel | Moss, Malcolm |
| Faber, David | Nicholls, Patrick |
| Fabricant, Michael | Norman, Archie |
| Fallon, Michael | Ottaway, Richard |
| Flight, Howard | Page, Richard |
| Forth, Rt Hon Eric | Prior, David |
| Fraser, Christopher | Randall, John |
| Gale, Roger | Redwood, Rt Hon John |
| Garnier, Edward | Robathan, Andrew |
| Gibb, Nick | Robertson, Laurence (Tewk'b'ry) |
| Gill, Christopher | Robinson, Peter (Belfast E) |
| Gillan, Mrs Cheryl | Rowe, Andrew (Faversham) |
| Gorman, Mrs Teresa | Ruffley, David |
| Green, Damian | St Aubyn, Nick |
| Grieve, Dominic | Shephard, Rt Hon Mrs Gillian |
| Hamilton, Rt Hon Sir Archie | Simpson, Keith (Mid-Norfolk) |
| Hammond, Philip | Spelman, Mrs Caroline |
| Hawkins, Nick | Spring, Richard |
| Hayes, John | Steen, Anthony |
| Heald, Oliver | Streeter, Gary |
| Heathcoat-Amory, Rt Hon David | Syms, Robert |
| Hogg, Rt Hon Douglas | Tapsell, Sir Peter |
| Howard, Rt Hon Michael | Taylor, Ian (Esher & Walton) |
| Howarth, Gerald (Aldershot) | Taylor, John M (Solihull) |
| Hunter, Andrew | Townend, John |
| Jack, Rt Hon Michael | Tredinnick, David |
| Jackson, Robert (Wantage) | Trend, Michael |
| Jenkin, Bernard | Tyrie, Andrew |
| Key, Robert | Walter, Robert |
| King, Rt Hon Tom (Bridgwater) | Wardle, Charles |
| Kirkbride, Miss Julie | Wells, Bowen |
| Lait, Mrs Jacqui | Whittingdale, John |
| Lansley, Andrew | Widdecombe, Rt Hon Miss Ann |
| Leigh, Edward | Wilkinson, John |
| Letwin, Oliver | Willetts, David |
| Lewis, Dr Julian (New Forest E) | Winterton, Mrs Ann (Congleton) |
| Lidington, David | Winterton, Nicholas (Macclesfield) |
| Lloyd, Rt Hon Sir Peter (Fareham) | Woodward, Shaun |
| Loughton, Tim | Yeo, Tim |
| Luff, Peter | Young, Rt Hon Sir George |
| McIntosh, Miss Anne | |
| MacKay, Andrew | Tellers for the Ayes: |
| McLoughlin, Patrick | Mr. Stephen Day and |
| Madel, Sir David | Mr. Nigel Waterson. |
| NOES | |
| Abbott, Ms Diane | Borrow, David |
| Ainger, Nick | Brinton, Mrs Helen |
| Ainsworth, Robert (Cov'try NE) | Brown, Rt Hon Nick (Newcastle E) |
| Alexander, Douglas | Brown, Russell (Dumfries) |
| Allen, Graham | Browne, Desmond |
| Anderson, Janet (Rossendale) | Burden, Richard |
| Ashton, Joe | Burgon, Colin |
| Atherton, Ms Candy | Burstow, Paul |
| Atkins, Charlotte | Butler, Mrs Christine |
| Austin, John | Byers, Stephen |
| Baker, Norman | Campbell, Mrs Anne (C'bridge) |
| Barron, Kevin | Campbell-Savours, Dale |
| Battle, John | Canavan, Dennis |
| Bayley, Hugh | Caplin, Ivor |
| Beard, Nigel | Casale, Roger |
| Beckett, Rt Hon Mrs Margaret | Caton, Martin |
| Begg, Miss Anne | Chapman, Ben (Wirral S) |
| Beith, Rt Hon A J | Chaytor, David |
| Bell, Stuart (Middlesbrough) | Chisholm, Malcolm |
| Benn, Rt Hon Tony | Church, Ms Judith |
| Bennett, Andrew F | Clark, Rt Hon Dr David (S Shields) |
| Bermingham, Gerald | Clark, Paul (Gillingham) |
| Best, Harold | Clarke, Charles (Norwich S) |
| Betts, Clive | Clarke, Rt Hon Tom (Coatbridge) |
| Blackman, Liz | Clarke, Tony (Northampton S) |
| Blizzard, Bob | Clelland, David |
| Blunkett, Rt Hon David | Clwyd, Ann |
| Coaker, Vernon | Hopkins, Kelvin |
| Cohen, Harry | Howarth, Alan (Newport E) |
| Coleman, Iain | Howarth, George (Knowsley N) |
| Colman, Tony | Hughes, Ms Beverley (Stretford) |
| Cooper, Yvette | Hughes, Kevin (Doncaster N) |
| Corbett, Robin | Humble, Mrs Joan |
| Corston, Ms Jean | Hutton, John |
| Cousins, Jim | Iddon, Dr Brian |
| Crausby, David | Illsley, Eric |
| Cryer, John (Hornchurch) | Jackson, Helen (Hillsborough) |
| Cunliffe, Lawrence | Jenkins, Brian |
| Cunningham, Jim (Cov'try S) | Johnson, Alan (Hull W & Hessle) |
| Curtis-Thomas, Mrs Claire | Johnson, Miss Melanie (Welwyn Hatfield) |
| Darvill, Keith | |
| Davey, Valerie (Bristol W) | Jones, Barry (Alyn & Deeside) |
| Davidson, Ian | Jones, Mrs Fiona (Newark) |
| Davies, Rt Hon Denzil (Llanelli) | Jones, Helen (Warrington N) |
| Davies, Geraint (Croydon C) | Jones, Jon Owen (Cardiff C) |
| Davies, Rt Hon Ron (Caerphilly) | Jones, Dr Lynne (Selly Oak) |
| Dawson, Hilton | Jones, Martyn (Clwyd S) |
| Dean, Mrs Janet | Kaufman, Rt Hon Gerald |
| Dismore, Andrew | Keeble, Ms Sally |
| Donohoe, Brian H | Keetch, Paul |
| Doran, Frank | Kemp, Fraser |
| Dowd, Jim | Kennedy, Jane (Wavertree) |
| Drew, David | Kidney, David |
| Dunwoody, Mrs Gwyneth | Kilfoyle, Peter |
| Eagle, Angela (Wallasey) | King, Andy (Rugby & Kenilworth) |
| Eagle, Maria (L'pool Garston) | King, Ms Oona (Bethnal Green) |
| Edwards, Huw | Kumar, Dr Ashok |
| Efford, Clive | Ladyman, Dr Stephen |
| Ennis, Jeff | Lepper, David |
| Etherington, Bill | Levitt, Tom |
| Ewing, Mrs Margaret | Lewis, Ivan (Bury S) |
| Fatchett, Derek | Lewis, Terry (Worsley) |
| Fisher, Mark | Linton, Martin |
| Fitzpatrick, Jim | Lloyd, Tony (Manchester C) |
| Fitzsimons, Lorna | Llwyd, Elfyn |
| Flint, Caroline | Lock, David |
| Flynn, Paul | McAllion, John |
| Foster, Michael Jabez (Hastings) | McAvoy, Thomas |
| Foster, Michael J (Worcester) | McCabe, Steve |
| Foulkes, George | McCafferty, Ms Chris |
| Fyfe, Maria | McCartney, Ian (Makerfield) |
| Galbraith, Sam | McDonnell, John |
| Gapes, Mike | McGuire, Mrs Anne |
| Gardiner, Barry | McIsaac, Shona |
| Gerrard, Neil | McKenna, Mrs Rosemary |
| Gibson, Dr Ian | McWalter, Tony |
| Gilroy, Mrs Linda | McWilliam, John |
| Godman, Dr Norman A | Mahon, Mrs Alice |
| Godsiff, Roger | Marsden, Paul (Shrewsbury) |
| Goggins, Paul | Marshall, David (Shettleston) |
| Golding, Mrs Llin | Marshall, Jim (Leicester S) |
| Gordon, Mrs Eileen | Marshall-Andrews, Robert |
| Gorrie, Donald | Meacher, Rt Hon Michael |
| Griffiths, Jane (Reading E) | Meale, Alan |
| Griffiths, Nigel (Edinburgh S) | Merron, Gillian |
| Grogan, John | Michael, Alun |
| Gunnell, John | Michie, Bill (Shef'ld Heeley) |
| Hall, Mike (Weaver Vale) | Milburn, Alan |
| Hamilton, Fabian (Leeds NE) | Miller, Andrew |
| Hanson, David | Mitchell, Austin |
| Heal, Mrs Sylvia | Moffatt, Laura |
| Healey, John | Moore, Michael |
| Hepburn, Stephen | Moran, Ms Margaret |
| Heppell, John | Morgan, Rhodri (Cardiff W) |
| Hesford, Stephen | Morris, Ms Estelle (B'ham Yardley) |
| Hewitt, Ms Patricia | Mudie, George |
| Hill, Keith | Mullin, Chris |
| Hinchliffe, David | Murphy, Jim (Eastwood) |
| Hodge, Ms Margaret | Norris, Dan |
| Hoey, Kate | O'Brien, Bill (Normanton) |
| Home Robertson, John | O'Hara, Eddie |
| Hoon, Geoffrey | Olner, Bill |
| Hope, Phil | Organ, Mrs Diana |
| Pearson, Ian | Stevenson, George |
| Pendry, Tom | Stewart, David (Inverness E) |
| Perham, Ms Linda | Stewart, Ian (Eccles) |
| Pickthall, Colin | Stinchcombe, Paul |
| Pike, Peter L | Stoate, Dr Howard |
| Plaskitt, James | Stott, Roger |
| Pollard, Kerry | Strang, Rt Hon Dr Gavin |
| Pond, Chris | Stuart, Ms Gisela |
| Pope, Greg | Sutcliffe, Gerry |
| Pound, Stephen | Swinney, John |
| Prentice, Ms Bridget (Lewisham E) | Taylor, Rt Hon Mrs Ann (Dewsbury) |
| Prentice, Gordon (Pendle) | |
| Primarolo, Dawn | Taylor, Ms Dari (Stockton S) |
| Prosser, Gwyn | Taylor, David (NW Leics) |
| Purchase, Ken | Temple-Morris, Peter |
| Quin, Ms Joyce | Thomas, Gareth R (Harrow W) |
| Quinn, Lawrie | Timms, Stephen |
| Radice, Giles | Tipping, Paddy |
| Rapson, Syd | Todd, Mark |
| Raynsford, Nick | Trickett, Jon |
| Reed, Andrew (Loughborough) | Turner, Dennis (Wolverh'ton SE) |
| Rogers, Allan | Turner, Dr George (NW Norfolk) |
| Rooney, Terry | Twigg, Derek (Halton) |
| Ross, Ernie (Dundee W) | Twigg, Stephen (Enfield) |
| Rowlands, Ted | Vis, Dr Rudi |
| Roy, Frank | Wallace, James |
| Ruane, Chris | Walley, Ms Joan |
| Ruddock, Ms Joan | Ward, Ms Claire |
| Russell, Bob (Colchester) | Watts, David |
| Ryan, Ms Joan | Webb, Steve |
| Salter, Martin | White, Brian |
| Savidge, Malcolm | Williams, Rt Hon Alan (Swansea W) |
| Sedgemore, Brian | |
| Shaw, Jonathan | Williams, Alan W (E Carmarthen) |
| Sheerman, Barry | Wilson, Brian |
| Sheldon, Rt Hon Robert | Winnick, David |
| Skinner, Dennis | Winterton, Ms Rosie (Doncaster C) |
| Smith, Rt Hon Andrew (Oxford E) | Wise, Audrey |
| Smith, Angela (Basildon) | Wood, Mike |
| Smith, Miss Geraldine (Morecambe & Lunesdale) | Woolas, Phil |
| Wright, Anthony D (Gt Yarmouth) | |
| Smith, John (Glamorgan) | Wright, Dr Tony (Cannock) |
| Smith, Llew (Blaenau Gwent) | Wyatt, Derek |
| Snape, Peter | |
| Squire, Ms Rachel | Tellers for the Noes: |
| Starkey, Dr Phyllis | Mr. John McFall and |
| Mr. David Jamieson. |
§ Amendment accordingly negatived.