HL Deb 17 November 1997 vol 583 cc432-56

House again in Committee.

Clause 37 [The appropriate level of a penalty]:

Lord Haskel moved Amendment No. 160: Page 19, line 1, leave out ("a tribunal or the court") and insert ("an appeal tribunal or the appropriate court").

The noble Lord said: In moving Amendment No. 160, I shall speak also to Amendments Nos. 161 and 162.

Amendments Nos. 160 to 162 are required following a change made in response to the consultation process that appeals on points of law and level of penalty should go directly from the appeal tribunal of the competition commission to the Court of Appeal.

Under the general definition of the term "court" in Clause 57, the court referred to in Clause 37 is the High Court which will not have any role in appeals on the level of penalty. The amendments also make clear that it is only appeal tribunals of the competition commission, rather than tribunals in general, which will be involved in appeals on the level of penalty. I beg to move.

On Question, amendment agreed to.

Lord Haskel moved Amendment No. 161: Page 19, line 6, leave out ("a tribunal or court") and insert ("an appeal tribunal or the appropriate court").

On Question, amendment agreed to.

Lord Haskel moved Amendment No. 162:

Page 19, line 8, at end insert— ("(9) In subsections (7) and (8) "the appropriate court" means—

  1. (a) in relation to England and Wales, the Court of Appeal;
  2. (b) in relation to Scotland, the Court of Session;
  3. (c) in relation to Northern Ireland, the Court of Appeal in Northern Ireland.").

On Question, amendment agreed to.

Clause 37, as amended, agreed to.

Clause 38 [Limited immunity for small agreements]:

Lord Lucas moved Amendment No. 163: Page 19, line 16, at end insert ("but not less than £50 million in respect of Part I and not less that £100 million in respect of Part II").

The noble Lord said: In moving Amendment No. 163, I shall speak also to Amendment No. 166. Both amendments deal with the same point; that is, the level of turnover at which these clauses kick in. It is particularly important that it should be set at a substantial and significant level.

The Bill is drawn, quite rightly, in a way which allows it to operate flexibly against all sorts of possible breaches of the intention of the legislation. But that generates, in the minds of people who may be subject to it—particularly companies—a degree of uncertainty as to whether or not they are caught by it.

It is unreasonable that small companies which do not have the administrative structure to deal with this sort of problem should be caught by this legislation. After all, the likelihood of their being involved in serious ill to their fellow man along the lines of competition misbehaviour is extremely unlikely.

The figures in the amendment are of no particular significance. They were inserted because I did not know what definition of "turnover" the Government had in mind. If they are thinking of turnover within the UK, possibly the figures may be too high; if they are thinking of global turnover, then they are not. I beg to move,

Lord Haskel

The noble Lord, Lord Lucas, raises an important point.

Before dealing specifically with the amendments, the Committee may find it helpful for me to point out that both Clause 38 and Clause 39 provide that the criteria for defining "small agreements" and "conduct of minor significance"—and hence of determining to which small and medium enterprises the limited immunity from penalties is to apply—may, in particular, include turnover and market share. A market share limit might be more appropriate for targeting regulatory resources to where there is most competition concern.

Such an approach is not without merit, hut it does not deal effectively with the concern voiced by the noble Lord, Lord Lucas, about the burden on small and medium enterprises. Moreover, the definition of a market, and hence calculation of market share. may give rise to uncertainty and therefore may provide less comfort to business than a straight turnover test.

The Committee will be interested to know that the Government's preliminary conclusion, subject to consultation at the time on the detail of the secondary legislation, is that it would be appropriate to set the limits in both Clauses 38 and 39 by reference to turnover. I can also confirm, as has already been made clear, that our intention is that the turnover should relate to the UK only. However, we thought it wise to draft the Bill to allow a market share limit as an alternative or in addition to a turnover limit or indeed any other criteria, and to enable turnover to be defined by secondary legislation.

Amendments Nos. 163 and 166 raise two issues. First, whether the Bill should itself specify minimum figures for defining turnover, or whether the figures should be left entirely to secondary legislation; secondly, what figures should be set. On the first issue there is of course the point that whatever monetary figure we might prescribe on the face of the Bill would be overtaken by events in the real world. But I would not wish to rest my case solely on pointing out the possibility of price inflation.

More fundamentally, we will need to see how this new competition regime works in practice. It may be that whatever figures are prescribed in secondary legislation will need to be adjusted as lessons are learnt and as the new regime beds down. What the Bill needs to provide is a flexible system for enabling the Government to deal with developments, rather than imposing limits on the face of the Bill. Nevertheless—to come on to the second issue raised by the noble Lord—I recognise that the Committee is entitled to know what the Government's present thinking is on those figures.

When Members opposite were in government they suggested in their 1989 White Paper, which proposed a prohibition based on Article 85, a de minimis level of a mere £5 million. Later they issued a consultation document which sought views on a figure of £20 million. The Government's compliance cost assessment for this Bill was based on the assumption that the figure in respect of both agreements and conduct would be £20 million.

We are of course sensitive to the concerns expressed both inside and outside your Lordships' Chamber. The Government have listened and our present view is that the figure for small agreements and conduct of minor significance should be turnover between £20 million and £50 million. In the case of agreements, the turnover is of course the combined turnover of the parties.

I am not able to give Members of the Committee a more precise figure now, not least because we will need to take a judgment nearer the time and will of course wish to consult on the detailed provisions with interested parties. I recognise that even the upper limit I announced is significantly lower than the figures the noble Lord proposed, especially as regards conduct, though he indicated that we should not attach too much significance to his figures. Nevertheless, the Government have listened to the concerns that have been raised. In the light of that explanation, I hope that the noble Lord will be prepared to consider my words and not press his amendment.

Lord Lucas

I am extremely grateful to the Minister for that eloquent and wholly satisfactory explanation. I shall be withdrawing my amendment. However, I should be grateful if the noble Lord would favour me with one further piece of information. Let us suppose that we are looking at an agreement that might come within the small agreement category and that the two parties to that agreement are of a totally disproportionate size. One might have a small manufacturer with a new product who is selling it to Sainsbury only, because Sainsbury has offered him a particular promotion, or one might have a sweet shop which is buying its chocolates from Cadbury. Is there any way in which such essentially small agreements can be exempted under the clause, or are they caught just because one party to them is big? Does it mean that the small company which is also party to them will have to tread as carefully as a big company would have to tread in the same circumstances?

Lord Haskel

Both parties would have to tread carefully. But it all depends on the nature of the agreement. It depends on whether the small company or the large company is contravening the conditions of the Bill.

Lord Lucas

I understand what the noble Lord says. However, one may have a new product and one may be the market in that product. I imagine that Mr. Dyson, when he started up with his vacuum cleaners, was the market for such vacuum cleaners. I would be concerned if he had to employ two or three lawyers, because he was the market, to deal with the problems under the Bill.

Lord Haskel

I do not think he would, because it is no crime to be dominant. The crime is to exploit that dominance. If Mr. Dyson exploited his dominance, he would be in danger. However, simply having a dominant product is not a crime.

Lord Lucas

I shall not extend this discussion. I shall read carefully what the noble Lord has said and perhaps return to the matter at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Kingsland moved Amendment No. 164: Page 19, line 20, leave out from ("35(1)") to end of line 35.

The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 167. The amendments are closely related. Amendment No. 164 deals with Chapter I prohibitions and Amendment No. 167 deals with Chapter II prohibitions. The point of reference for these amendments is Clause 35, which is entitled Penalty for infringing Chapter I or Chapter II prohibition.

Small businesses are caught by the prohibitions but they are granted immunities in certain circumstances. Those circumstances are set out in Clauses 38 and 39. Having granted these immunities, the Government seek in certain circumstances to claw them back. Those circumstances, in respect of Chapter I prohibitions, are set out in Clause 38(3) to (8), and, in respect of Chapter II prohibitions, are set out in Clause 39(3) to (8). These two amendments seek to strike out the circumstances in which the Government can cancel immunity. I beg to move.

8.45 p.m.

Lord Haskel

The short answer to the noble Lord's amendment is that we do not want small businesses to learn bad habits. I do not believe it is right that small businesses should never be capable of having penalties imposed on them other than in the case of price-fixing agreements, which this amendment seems to imply. If the noble Lord's amendments were accepted, there would remain the possibility of the prohibitions being enforced by a decision of the director and directions under Clauses 31 and 32. There would also be the possibility of third party actions.

In the nature of things, though, ordinary consumers and small companies, who will commonly be the victims of anti-competitive agreements and abuses by small and medium-sized enterprises, are less likely and less able to pursue their rights through the courts than would a big business. But a major element of the new regime that we are proposing, and what was rather lacking from the regime that it will replace, is deterrence. If there is little or no possibility of a business being penalised for infringing the prohibitions, it will have no incentive to avoid doing so at that time or thereafter.

That is not to say that there should not be some immunity from penalty for small businesses. These clauses show that the Government accept that there should and the protection they provide is extensive. The director must give written notice of his intention to withdraw immunity from penalty. The removal of immunity cannot be backdated to before the director took his decision. In determining the withdrawal date, the director must have regard to the time required to be able to bring the infringement to an end. Thus, any reasonable business would have every opportunity to avoid the imposition of a penalty. I would therefore think it not at all likely that many businesses protected by these clauses would be subject to penalties. We also need to guard against what I might call serial infringers. If there were no risk of penalty, a business would have little incentive not to engage in repeated small infringements.

In the light of what I have said and the recognition that all sides have shown for the need for the system to deter—I know I have the noble Lord's agreement on that—I wonder whether he is able to withdraw the amendment.

Lord Kingsland

I thank the Minister for his response but I wish to point out to him that there is already a substantial deterrent in place. Small businesses are not immune to the effect of the prohibitions themselves. Because they are still subject to the prohibitions, they can be subject to third party actions. Therefore, the deterrence is in the fact that the third party can bring an action against them.

We think the immunity should be unqualified both because the costs of compliance by small businesses are very great—they do not have the resources which large businesses have to ensure that they are complying with every crossed "t" and dotted "i" of the competition regime—and, equally, because monitoring the agreements is likely to absorb, since small businesses are numerous, a disproportionate amount of the time of the Director General of Fair Trading. For those reasons I believe that a fair balance is already achieved between deterrence on the one hand, and a light touch for the regime on the other.

Lord Haskel

I am not quite sure what point the noble Lord is making. Is he saying that there is already sufficient deterrence and that the regime is therefore unimportant? He appears to be ignoring the other points I was making about serial infringements, the fact that there is protection for small and medium-sized companies and the fact that the director has to give written notice if he intends to withdraw immunities. It seems to me that most businesses have every opportunity to avoid the imposition of a penalty. Indeed, being small businesses, most of them would not have to make a large effort to ensure that they did not fall within the prohibitions of the Bill.

Lord Kingsland

I do not want to prolong the discussion on these amendments too much. I say to the Minister that the deterrent is provided by the fact that these small businesses are subject to the prohibitions and is considerably greater than he might think. Who is most likely to identify anti-competitive behaviour by small businesses? It will be their competitors. They are in a strong position to bring third party actions against companies that contravene Chapters I and II of this Bill. I emphasise to the Minister that there is a very good built-in system of deterrence already in existence. There is no need to add the great panoply of bureaucratic interference which will necessarily flow from these small businesses also being subject to the penalties.

Lord Borrie

I believe that the noble Lord, Lord Kingsland, exaggerates the deterrent aspect of third party actions. In my experience in the limited area under the Restrictive Trade Practices Act third party actions have been possible in the past. But small businesses have been extremely reluctant to take action themselves because of the expense. With some reason they have thought that the public office, namely the Office of Fair Trading, set up especially to enforce the law should take action at public expense. That is the real deterrent.

When one talks about small businesses one should not assume that they are all good boys. We are all in favour of small businesses and their continued success. But we also know of cases—not just the bus companies that I mentioned earlier today but also estate agencies—where firms have been known time and again to engage in malpractice. I do not mean to damn all estate agencies and bus companies, but I do not believe that it is right to say that third party actions are a sufficient deterrent in all cases.

Lord Kingsland

I do not know whether the Minister is going to respond further to what I said. I suspect that the argument has been pretty fully aired. In the circumstances I express my regret that the Minister has not responded more positively to my suggestions, and I shall bear that in mind when considering what amendments to table at Report stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Kingsland moved Amendment No. 165: Page l9, line 40, at end insert ("(but shall not prejudice a supplier's right to prohibit loss leading)").

The noble Lord said: This is a fairly straightforward amendment. It seeks to add to the end of Clause 38(9) the expression, but shall not prejudice a supplier's right to prohibit loss leading".

I believe that the context will be clear to the Minister. The subsection deals with price-fixing agreements. The intention of the amendment is to make it clear that a supplier's right to prohibit loss leading shall not be included in that category. I beg to move.

Lord Haskel

I would like to make clear at the start that the Bill is not intended to introduce any general rule prohibiting all restrictions on loss leading. We had this debate on the first day in Committee when we discussed the newspaper industry. Restrictions by a supplier on loss leading may or may not be prohibited, depending on their effects on competition.

All we provide in Clause 38 is that the special immunity from penalties is not available where the agreement has the object or effect of restricting the freedom of one party to determine prices. This is an important safeguard. Such agreements have the potential to create the most serious anti-competitive effects.

If an agreement does not qualify for the special immunity under Clause 38, it does not follow that it will be prohibited. A restriction on loss leading might not fall within the prohibition in the first place, and if it did it might qualify for exemption. The director can assess the effects of the restriction in the individual circumstances. The director will have to decide whether the price of a product is a loss leader or the supplier is satisfied with low margins. I therefore urge the noble Lord to withdraw his amendment.

Lord Kingsland

I thank the Minister very much indeed for his reflective answer to my amendment. In those circumstances I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Clause 38 agreed to.

Clause 39 [Limited immunity in relation to the Chapter II prohibition]:

[Amendments Nos. 166 and 167 not moved.]

Clause 39 agreed to.

Clause 40 [Agreements notified to the Commission]:

Lord McNally moved Amendment No. 168: Page 20, line 30, leave out ("does not prevent") and insert ("prevents").

The noble Lord said: In the absence of my noble friend Lord Ezra, and at his request, I move this amendment. I know that it is a matter of some concern to him and he very much regrets that he is unable to be here to move it. It is a small but decisive amendment. It relates to his concern, which I share, about the overlapping nature of the jurisdiction of UK regulators and EC regulators.

Running through some of the ministerial responses and the contributions of their Back-Bench supporters, there seems to be the idea that regulators are a good thing and that these are the guys in the white hats who go around the countryside slaying wrongdoers here, there and everywhere. We on this side of the Committee share the enthusiasm of Ministers for rooting out the wrongdoers, but a good deal of the evidence that we hear from industry is that the work of the regulators can be leisurely, academic and far removed from the realities of running a business.

My noble friend is anxious that those who are trying to run a business—not the sinners or wrongdoers or the people about whom Ministers are concerned, but the ordinary businessmen—do not find themselves in a kind of double jeopardy as a result of giving powers both to the EC and UK regulators. One might find that when one regulator is satisfied, the other regulator starts up a separate investigation.

That is the thinking behind my noble friend's amendment. As I say, it is not something that he has come up with as an early morning inspiration; the amendment is the result of some pretty heavy lobbying by industry based on its own experience and its fears. I hope that the Minister can give some reassurance. I beg to move.

9 p.m.

Lord Kingsland

My noble and learned friend Lord Fraser of Carmyllie has added his name to this amendment. In wholly concurring with what has just been said on behalf of the noble Lord, Lord Ezra, by the noble Lord, Lord McNally. I should like to emphasise just one point. As I understand it, the philosophy behind the Bill is to ensure that our legislation on this matter dovetails with the European Community regime. Above all, it aims to introduce certainty and economy into the operation of the regime.

In the context of those two objectives, I find it difficult to understand why the fact that an agreement has been notified to the Commission does not prevent the director from investigating it himself. There seems to be an unnecessary overlap of responsibilities which will not only create unnecessary work for the director general and his staff and unnecessary work for any company that is being investigated, but which will also impose unnecessary burdens on the economy. As the Minister said in a number of earlier interjections, the whole object of this Competition Bill is to enhance the competitiveness of the economy.

Lord Haskel

I shall not try to comment on the remarks of the noble Lord, Lord McNally, about the work habits of regulators and whether they are in contact with the real world, especially in the presence of my noble friend Lord Borrie. Regulators have, however, been effective in the past few years in reducing the prices and looking after the interests of the consumer and that, to some extent, means being in touch with the real world.

Perhaps I may move now to the comments made by the noble Lord, Lord Kingsland, about dovetailing into the European regime. We discussed this when we considered the amendment moved by my noble friend Lady Nicol. We concluded that the European Commission and the director in the United Kingdom did not want to duplicate each other's work. They would not want to carry out unnecessary extra work.

We have, however, carefully considered the case for giving absolute legal certainty by preventing any action by the director while the Commission is considering the same matter. We have provided in this clause the legal certainty of immunity from penalties under the Chapter I prohibition before the Commission determines the notification for exemption. However, we decided that it would be dangerous to provide in the Bill a bar on the director investigating such agreements. In deciding whether to provide for such a bar, I am sure that noble Lords will appreciate that we must be alive to the risk of loopholes which can be abused. We discussed that earlier.

There may be cases notified to the European Commission which raise little or no Community interest, which it has neither the time nor the resources to attend to, and which the director might therefore wish to investigate. The cases may not involve interstate trade. Further, if we accepted the amendment, parties to agreements which have no effect on interstate trade may see a loophole and notify agreements to the Commission in an attempt to evade action being taken by the director. We therefore consider that it would be wrong to create an absolute legal bar preventing the director from investigating cases which have been notified to the European Commission. I hope that that explanation satisfies the Committee.

Lord McNally

Perhaps I should take this opportunity to try to correct Hansard. I referred earlier to regulators, and I should like to insert, "except with the shining exception of the noble Lord, Lord Borrie".

Noble Lords

Hear, hear!

Lord McNally

I am not sure about the Minister's explanation. I can see that the Government do not want to create loopholes, but these provisions seem to go a lot further than mere dovetailing. The strong representations of the CBI and others with concerns about overlapping jurisdictions have not been made lightly. I hope that as the Bill proceeds there will be an opportunity to look again at this. However, in the light of the Minister's interim reply, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 40 agreed to.

Clause 41 [Offences]:

Lord Kingsland moved Amendment No. 169: Page 20, line 38, after ("produce") insert ("or provide an explanation or).

The noble Lord said: I hope to have a little more success with this amendment. It is not quite a technical amendment, but it seems to me that what we are seeking runs on quite naturally from what is in the Bill already. The amendment deals with the question of offences under Clause 41(2), which states: If a person is charged with an offence under subsection (1) in respect of a requirement to produce a document, it is a defence for him to prove", and the defences are then listed. The amendment seeks to insert, after the words "requirement to produce" the phrase, or provide an explanation of", a document. That is often a requirement of an investigator and it seems to us that the defences ought equally to apply to that. I beg to move.

Lord Haskel

The noble Lord, Lord Kingsland, will have a bit more success with this amendment because I can see the strength of his argument. It is not the intention of the Government to make it an offence for a person to provide an explanation of a document where that person is not able to provide such an explanation. I accept that I should reflect further on this issue in the period between now and Report. I would therefore invite the noble Lord to withdraw his amendment. We shall consider it further.

Lord Kingsland

In those circumstances, I am very happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 41 agreed to.

Clauses 42 and 43 agreed to.

Clause 44 [The Competition Commission]:

Lord Kingsland moved Amendment No. 169A: Page 22, line 4, leave out subsections (1) and (2).

The noble Lord said: I beg to move Amendment No. 169A. I should like to speak also to Amendments Nos. 169B to 169F and other amendments in this group. I shall not take up too much of the Committee's time in explaining the background to this amendment. I believe that I dealt with the matter in winding up on behalf of the Opposition during Second Reading. Noble Lords opposite are aware of the case I seek to make. I believe that the competition commission is a mistaken institution and should not be in the Bill. The two functions given to it in the Bill, one of adjudication and the other of investigation in relation to monopolies, should better be undertaken in the first case by the High Court and in the second case by the Director General of Fair Trading. I shall not reopen those issues. I am aware that noble Lords opposite are actively reflecting on them and no doubt will in due course deliver their judgment on them one way or another.

Meanwhile, in order to follow through my proposals, certain amendments to the Bill are required. Some of those are set out in Amendment No. 169A and the other amendments to which I have referred. Clause 44(1) deals with the responsibilities of the purported competition commission in respect of monopolies and mergers. I have sought to remove the competition commission as the actor and replace it with the director. I believe that the director in addition to being responsible for Chapter II prohibitions should also be responsible for the investigation of complex monopolies. I believe that it is a nonsense to divide the responsibilities in respect of two such intimately connected matters. I beg to move.

Lord Borrie

I rise to oppose this amendment. The proposal for the establishment of a competition commission to perform the role provided in the Bill was also recommended by the previous government. I welcome that. The idea of a competition commission is, among other things, to build up specialised knowledge of competition matters. I believe that what the noble Lord, Lord Kingsland, sees as a disadvantageous mix is a good mix; namely, a membership which hears references from time to time—no doubt fewer than in the past—on complex monopolies and scale monopolies. But the same individuals who are members of the competition commission may comprise part of the membership of a tribunal hearing appeals from decisions, including decisions on penalty and substance, from the Director General of Fair Trading.

I commend the mix of qualities and qualifications of members, which is not untypical of the Monopolies and Mergers Commission in the past. Assuming it continued, it would include businessmen, trade unionists, academics, economists, lawyers and others from different walks of life. In the main, they would serve in a part-time capacity; others would serve perhaps more or a less in a full-time capacity. They would provide a mixed background of experience and would be able to build up considerable expertise in a specialised field of law and policy; namely. cartels and abuse of dominant position.

I believe that to substitute the High Court—which I suppose would mean a judge of the Queen's Bench Division who, once in a blue moon, would deal with this specialised area—would be even less satisfactory than the constitution of the Restrictive Practices Court, which under this Bill will come to an end. There a judge of the High Court would have sitting with him two members who were not judges but who had experience of business and commerce. The idea of a competition commission—I hope that the Minister will forgive my saying that this device was not thought up by the present Government but by the previous one—builds upon the experiences of both the Restrictive Practices Court and the Monopolies and Mergers Commission, and is a sound one.

It is clear, as the noble Lord, Lord Kingsland, indicated in relation to previous matters, that he fully understands that the president of the tribunal function of the competition commission will be a highly qualified lawyer of the calibre of a High Court judge. That is recognised by the fact that any appeals from the competition commission should go to the Court of Appeal and not to the High Court, because that would be at the same level as the president himself. The competition commission will have the mix of functions to which the noble Lord objects, and the mix of membership. Those are both plus points for the proposal in the Bill. It would be a great pity to accept this combination of amendments, which would destroy that building up over the years and continuing into the future, of a specialised body.

9.15 p.m.

Lord Simon of Highbury

First, I am grateful to the noble Lord, Lord Kingsland, for the notice he gave of this amendment in debate on the first Committee day. As I did not have the pleasure of winding up on that occasion, perhaps I may put forward, build on, and, I hope complement, the ideas that my noble friend Lord Borrie has just been expounding.

It may be helpful if I explain why we have proposed the institutional framework set out in the Bill. As I understand the noble Lord's amendments, the intention is to abolish the Monopolies and Mergers Commission and transfer its functions to the Office of Fair Trading. The MMC currently exercises functions under the Fair Trading Act monopoly and merger provisions, which we intend to continue within the new competition commission. We have already expended a good deal of energy discussing the reasons for retaining that legislation. The question here is whether those functions would be better carried out by the Office of Fair Trading.

The Fair Trading Act balances carefully the respective roles of the Office of Fair Trading, the MMC and the Secretary of State. The approach to dealing with competition issues under the Act is very different from that introduced by the Bill in relation to the prohibitions. I touched on that point in the debate last week. The Act enables wide ranging investigations into markets, and for matters to be considered against a general public interest test, albeit that competition is in practice a central feature of that test. Further, a very wide range of remedies may be imposed to remedy situations which are determined to be contrary to the public interest. In those circumstances it is quite right that the responsibility for remedies should rest with Ministers, subject to parliamentary scrutiny.

I believe also that it is right that under this sort of approach there should be a careful separation between the body which conducts the preliminary investigation and frames the reference; and the body which conducts in-depth inquiries, considers matters against the public interest test, and makes recommendations as to remedies. The collegiate structure of the MMC is right for this latter role. As my noble friend Lord Borrie reminded us, that was also the previous government's view.

I think that there would be too great a risk in combining all those functions in a single organisation. The Fair Trading Act has been in operation for nearly 25 years now, and I believe that the separate and independent character of the MMC has been crucial in establishing and maintaining confidence in the operation of the law.

The new prohibition regime introduces a different approach to competition matters and calls for a different institutional arrangement. The Bill establishes legal tests for assessing whether behaviour is anti-competitive or not. The Office of Fair Trading is to be the primary enforcer of the prohibitions. It is right that under that approach, appeals against the substance of his decisions should be dealt with by more court-like arrangements than are appropriate for MMC inquiries under the Fair Trading Act.

That is why the Bill establishes a new tribunal within the competition commission. The tribunal will, as I say, have many of the characteristics of a court, as my noble friend Lord Borrie said. Indeed it will be recognised as having the same importance and status as the High Court, as appeals from the tribunal will be to the Court of Appeal. I have no doubt that the European Court of Justice will see the tribunal in the same light. The noble Lord, Lord Kingsland, will know that Article 177 of the EC treaty expressly refers to references from tribunals as well as courts.

There will be a clear advantage in dealing with appeals against the director's decisions in a tribunal—of high status like this one—rather than in a court. The procedural rules by which the tribunal operates may be tailored to suit the nature of the matters it will typically deal with, and they will be drawn up taking into account best practice from the courts and other tribunals.

The tribunal will be a UK-wide body, capable of dealing with issues relating to the whole of the UK. That will be a very distinct advantage given the nature of many competition cases.

The approach we have chosen also means that cases will be heard by both legal and lay members. I believe that it is essential that the tribunal panel contains the necessary breadth of experience and expertise to be able to deal effectively and efficiently with the complex commercial, economic and social issues involved in competition cases. Our approach also means that we can draw on a much wider range of people to chair tribunals while of course recognising that tribunal chairmen will need to be properly legally qualified. Schedule 7 to the Bill sets out necessary legal qualifications.

I have explained why we believe that it is right to go down the road of a tribunal to hear appeals under the new regime. We do not, however, see any need to create an additional competition body. That would be unduly costly. The arrangements we propose will make the most efficient use of the expertise and resources available. We also believe that it will encourage healthy cross-fertilisation within the new competition commission. It will serve to promote consistent treatment of similar matters under the different pieces of legislation, although of course the method of approach to matters will be different. The primary function of the tribunal will be to re-hear and review the evidence considered by the director, not to initiate its own in-depth investigations.

Clause 44 introduces Schedule 7 of the Bill, which sets out detailed provisions governing the new competition commission's establishment and functions. In relation to the existing functions of the MMC, which will carry over to the new commission, the aim has been to reproduce the current arrangements. As to the new functions introduced by this Bill, the schedule provides for the appointment of tribunal panel members, chairmen and president. I should like to take this opportunity to say that at a later stage we will wish to make a number of amendments to the schedule to tidy up various points which we had not time to deal with before introduction. These are mainly technical changes and I hope that all will be uncontentious. But I am keen that we should get them right before the Bill leaves this House. For example, the provisions as to auditing should be changed in line with treasury guidance which we have received. We would also wish to ensure that conditions as to financial and management matters—though not to anything else—may be attached to grants to the commission.

I thank the Committee for giving me the opportunity to lay out some of the institutional arrangements and to explain our thinking. Perhaps I may summarise my remarks. The basis of our approach is that it is essential for the credibility of the new regime, and in the interests of fairness and transparency, that there are effective and efficient appeal arrangements. We believe that our proposals will achieve that and, at the same time, mesh sensibly and productively with the institutions already in place under the current regime.

I suspect that my lengthy—that is, at this stage of the evening—and institutionally-based reply comes as little surprise to the noble Lord, Lord Kingsland. Perhaps having heard it he will see fit at this stage to withdraw his amendment.

Lord Kingsland

I hope that Members of the Committee will forgive me if I have one last crack at the issue because I consider it important. I would not like to abandon it without pursuing it one step further. Why a court? Simply because Article 6 of the European Convention on Human Rights and the jurisprudence under it have made it clear that the process in which the director general is to be involved concludes with criminal penalties. Since that is the case, those who are likely to be on the receiving end of such penalties are entitled to all the requirements of due process. From what I have seen of the proposals for the procedure of the tribunal I am not convinced that they will receive it. Indeed, I do not believe that a tribunal is a suitable institution to guarantee due process. For that reason, I propose that the function should be performed by a division of the High Court. I shall leave that point there.

The Minister talked about the extremely delicate balance that the procedure for investigating complex and scale monopolies requires and has talked about how successful that balance has been over the past 20 years. Leaving aside that judgment of history, I question whether his view that giving the powers of the Monopolies and Mergers Commission to the Director General of Fair Trading would destroy the separation of powers that has been achieved by the existing procedure.

Under the Bill, the Director General of Fair Trading has powers of investigation, prosecution, conviction and fine. There is hardly a separation of powers there. Therefore, I do not know why the Minister should think that handing the powers of the Monopolies and Mergers Commission to the Director General of Fair Trading would further affect adversely the concept of separation of powers.

Moreover, there seems to be an unacceptable duplication of function in investigating monopolies. Surely the investigation of Chapter II prohibitions and complex and scale monopolies will often require investigation into the same companies in the same industries. How can one justify separate organisations looking at those two issues simultaneously or even sequentially? I find that very difficult. However, I shall not ask the Minister to repeat or even elaborate on what he has already said unless he wishes to do so. I understand the Minister's position. I merely invite him to reflect on what I have said. It is a matter to which we shall probably return on Report.

Lord Simon of Highbury

There is one point that I should like to make and it concerns the issue of the European Convention on Human Rights and the point raised again about the capacity of a court or tribunal to address those facts with due process. I see no reason why a tribunal cannot give the appropriate judgments and protections. A court-like tribunal or a tribunal-like court seems to me, as a layman, to be dancing on a pin head.

If inappropriate judgments are made by a tribunal-like court in terms of the European Convention on Human Rights issues, it will be possible to appeal against those judgments. But I have every confidence that such matters can be addressed by the tribunal in process terms. I am grateful that the noble Lord does not seek to go further into institutional relationships and I ask the noble Lord to withdraw the amendment at this stage.

Amendment, by leave, withdrawn.

[Amendments Nos. 169B to 169D not moved.]

Clause 44 agreed to.

On Question, Whether Schedule 7 shall be the seventh schedule to the Bill?

Lord Kingsland

The notice of my intention to oppose this Question must be seen in the light of the previous debate in relation to the status of the competition commission and all the points which have already been covered. In those circumstances, I shall no longer oppose the Motion that Schedule 7 shall be agreed to.

Schedule 7 agreed to.

Clause 45 [Appealable decisions]:

[Amendments Nos. 169E and 169F not moved.]

9.30

Lord Kingsland moved Amendment No. 170: Page 22, line 32, at end insert ("or as to whether the Director has complied with the requirements of section 58").

The noble Lord said: The amendment relates to Clause 45(2) which deals with "appealable decisions". The clause concerns the circumstances in which an individual or a company may appeal to the competition commission. The amendment seeks to add a requirement to those circumstances; namely, whether or not the director has complied with the requirements under Clause 58 regarding compliance with the principles of European Community law. I beg to move.

Lord Simon of Highbury

Clause 45 enables appeals to the new competition commission appeal tribunal against a decision taken by the Director General of Fair Trading or by one of the sector regulators under the prohibitions. It is our intention that substantive decisions by the director should be appealable to the competition commission. We believe that the right to appeal against such decisions is an essential part of ensuring a fair and transparent system.

The requirements in Clause 58 are intended to ensure that the new prohibitions are applied consistently with the principles of Articles 85 and 86 except where the Bill specifically provides otherwise. That is the point of connection to which the noble Lord, Lord Kingsland, referred. It is our view that the Bill already provides that these requirements apply to the director in making decisions as to the application of the prohibitions. Therefore, it would be possible to appeal against a decision by the director that a particular course of conduct infringes the Chapter II prohibition on the grounds that the director's decision was not in accordance with the requirements of Clause 58. This is similar to our earlier discussion on whether or not a man is a reasonable man. I ask the Committee: do we have to add it to the Bill to ensure that the Clause 58 provision is seen as fundamental to the whole process; in other words, appealable against if it is not applied?

The view from this side of the Committee is that we do not believe that Amendment No. 170 adds anything to the Bill. As I said, it will be possible to appeal against a decision by the director on the grounds that his decision was not in accordance with the requirements of Clause 58. I am most grateful to the noble Lord, Lord Kingsland, for enabling me to put this on the record. However, I ask him to consider withdrawing his amendment.

Lord Kingsland

I am most grateful for the Minister's response. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 171 not moved.].

Lord Kingsland moved Amendment No. 172: Page 23, leave out line 5.

The noble Lord said: In moving this amendment, I wish to speak also to Amendment No. 176. Amendment No. 172 seeks to amend Clause 45(3), which contains a list of appealable decisions. The amendment seeks to remove the words, "cancelling an exemption". Amendment No. 176 seeks to insert at page 23, line 11 the words, and any other action of the Director relating to an individual exemption, a block exemption or parallel exemption made under sections 4 to 11".

In other words, it retains the concept of an exemption but expands it to a wider range of matters which in our submission are more appropriate and more comprehensive. I beg to move.

Lord Simon of Highbury

I shall speak to Amendments Nos. 176 and 172. Amendment No. 172 seems to be consequential. There is no need for the deleted reference to exemptions if Amendment No. 176 is accepted.

I have already explained our intention that substantive decisions by the director should be appealable to the competition commission. The list of appealable decisions in Clause 45(3) is intended to specify the various substantive decisions that the director might make, and which may be appealed to the commission.

Many of the decisions contained in this list relate to individual or block exemptions. It is our intention that all substantive decisions relating to exemptions should be capable of being appealed to the competition commission. I do not, therefore, believe that these amendments are necessary. All the matters which should be appealable in relation to exemptions will be appealable.

On the other hand, the very broad formulation in Amendment No. 176 would bring in matters which in our view it would be neither practicable nor necessary nor desirable to make appealable. We do not, for example, intend it to be possible to appeal against a view taken by the director that there had been a material change in circumstances concerning an exempted agreement. This would not be a substantive decision. It is, however, right that, if the director decides in such circumstances that an exemption should be revoked, that decision should be open to appeal. The Bill enables such appeals to be made. Indeed, once such a decision had been made by the director, it might be appealed on the grounds that there had been no material change in circumstances. But we believe that the right stage to make such an appeal is when, and if, the director takes a decision.

I would like to say at this stage that we are currently reflecting on whether the list in Clause 45(3) is precisely right. It has been suggested to us that there may be minor gaps or some scope for clarification. It is important that we should have covered all types of decision that should be appealable. This may therefore be an area which we would wish to return to at Report Stage, without, however, wishing to depart from our intention that only substantive decisions should be appealable. With that in mind, I ask the noble Lord, Lord Kingsland, whether he would see fit at this stage to withdraw Amendments Nos. 172 and 176.

Lord Kingsland

I thank the Minister for his response. I am happy in the circumstances to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Kingsland moved Amendment No. 173:

Page 23, line 5, at end insert— ("( ) requiring production of a specified document under section 26(1)").

The noble Lord said: In moving Amendment No. 173, I shall speak also to Amendment No. 174. The amendments add categories to the list of appealable decisions. Amendment No. 173 requires production of a specified document under Section 26(1). Amendment No. 174 provides, in respect of requests for documents and for explanations of documents under sections 26, 27 and 28".

I believe that the amendments are self-explanatory. I do not need to add anything to them.

Lord Simon of Highbury

The amendments seek to enable appeals to the competition commission against the director's use of his investigation powers.

Clause 45 provides for appeals against decisions by the director. This allows people and businesses to appeal against decisions which, if put into effect, will damage their interests—for example, a decision to impose a penalty, or a direction to stop engaging in a particular business practice. Such decisions could obviously have a significant impact on those affected.

Requests for documents by the director under his powers are not substantive decisions. An individual or business will not suffer any harm by producing a document, or explaining a document to the director—unless, of course, the document reveals that there has been wrongdoing, in which case the document is obviously relevant.

It is only an offence under the Bill to refuse to provide a document which is relevant to the investigation. No one can be successfully prosecuted for not producing a document if it is not relevant.

This all harks back to the very full debate we had about the need for a director to have the powers of investigation he needs to be able to enforce the prohibitions effectively. It is the Catch-22 situation that we spent some time discussing before dinner. I hope it will not return. I shall soon be calling it the Yossarian effect. I think that it is right that the director should be able to see any relevant documents in order to investigate matters properly. It can do a firm no harm to produce such documents for a director. There are clear safeguards in the Bill to protect information contained in such documents. Indeed, criminal sanctions would apply to any unlawful disclosure of such information by the director.

Having sought to elaborate on the difference between a decision and a documentation, I urge the noble Lord to consider withdrawing the amendment.

Lord Kingsland

As the Minister rightly observed, in an earlier debate we investigated the meaning of relevance, in particular the objectivity or otherwise of the person who decided whether or not a document was relevant. I believe the Minister said that one cannot be prosecuted for not producing a document that is not relevant. The difficulty about that approach is that the person who decides whether or not a document is relevant is the director general. On the face of the Bill, his discretion on this matter is absolute. Therefore those words may not be as comforting as the Minister might genuinely and in a bona fide way have considered them to be.

I hope that the Minister will consider the two amendments in the light of the earlier debate. I believe that this issue of relevance is fundamental to the procedures. If there is no way in which the director general's view about relevance can be questioned, it is a serious defect in the due process that the Minister seeks to guarantee and might suffer at the hands of the courts at a later stage. I therefore ask the Minister, not only for the successful operation of the Bill, but also because of the legal context in which it has to operate, to reflect carefully on this issue when he returns at Report stage. In those circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 174 not moved.]

9.45 p.m.

Lord Kingsland moved Amendment No. 175:

Page 23, line 9, at end insert— ("( ) on a Director's finding within the meaning of section 56(2)").

The noble Lord said: This amendment relates to Clause 45 (3). It seeks to establish a right to appeal, on a Director's finding within the meaning of section 56(2)".

Clause 56(2) defines a director's finding as, a finding of fact made by the Director in the course of determining an application for a decision under section 14 or 22".

In our submission, it is an important protection for the individual or company that is being investigated to have a right of appeal in those circumstances. I beg to move.

Lord Simon of Highbury

The issue raised by the noble Lord is an interesting one. It might be helpful if he could clarify whether the right of appeal is before the finding and decision of the director general, or after. It is a matter of some interest as to where the appeal is positioned or whether this is just a general statement.

Lord Kingsland

A case could be made out for both. However, the amendment as I see it refers to an appeal after the decision is taken in relation to the factual underpinning of the final decision.

Lord Simon of Highbury

I am grateful to the noble Lord for that elucidation. It is important that we understand the sequence well. It is appropriate for the process to be followed and a decision made by the director, and a total finding then to be appealable on the basis of the facts. We would not like to split the process going through to the director by appealing facts on the way. That may not be the most efficient process. However, there is an interest in considering the way in which an appeal on facts made after the decision is built into the construction of these clauses. I shall think extremely hard about the position that the noble Lord has now clarified; I wish to reflect on it before Report stage.

Lord Kingsland

I am most grateful to the Minister for that response. In those circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 176 and 176A not moved.]

Clause 45 agreed to.

Clause 46 [Third party appeals]:

Lord Kingsland moved Amendment No. 177: Page 23. line 17, leave out ("Director asking him") and insert ("Tribunal asking it").

The noble Lord said: I shall move Amendment No. 177 and speak also to Amendments Nos. 178 to 187. The point is simple. In our submission the appeal should not be to the director but to the tribunal. It will give third parties who have a sufficient interest in the decision the right to appeal to the tribunal. It seems to us that the objectivity of that approach is a better solution than the one set out in the Bill. I beg to move.

Lord Simon of Highbury

In responding to the group of amendments tabled by the noble Lords, Lord Kingsland and Lord Lucas, it may be helpful to outline the considerations behind devising the mechanism by which third parties should be able to appeal a decision of the director.

Clearly it would have been unacceptable for the director himself, without the safety net of appeal, to determine whether the third party had the requisite interest to challenge his decision and, if so, whether to change his decision. None of us likes having our decisions overturned, even directors general in white hats or whatever appropriate clothing the noble Lord, Lord McNally, ascribed to them. That is why we have allowed appeal on the question of having the requisite interest and, if so, whether the decision should be changed. That is an important safeguard and ensures that the clause strikes the right balance.

However, we carefully considered the option proposed by the amendments of the noble Lord, Lord Lucas, of allowing a third party to go directly to the tribunal without first approaching the director. It may be that many Members of the Committee have put down amendments in this large group and I hope that I have not ascribed any amendment to the wrong noble Lord. I am grateful for the opportunity to listen to the arguments. However, I continue to prefer the approach set out in Clause 46. That is because it should help avoid unnecessary appeals.

For example, the third party might have new information which was not available at the time the director took his decision. The director could discuss the new information and concerns with the parties who are the subject of the decision and it might be that a revised decision is issued which is acceptable to all and which avoids the cost of setting up an appeal tribunal.

If the director accepts that the third party has the requisite interest in the decision, this procedural question does not then have to be determined as an initial issue by the tribunal before the main appeal. Once again costs could be saved. I accept that the director will not be keen to have his appeal challenged, but when he is determining the issue of requisite interest under Clause 46, of course he must and will act reasonably and within the law. The director, with his detailed knowledge of the case, should be able to come to a view quickly. The tribunal, on the other hand, would have to spend far greater time examining the case before being able to come to a decision on this initial procedural question. If the director accepts that the third party has the requisite interest under Clause 46, the tribunal can be saved this task.

Finally, by obliging the third party to approach the director first, the tribunal will have an established issue to determine between two opposing parties. The amendments do not provide for the director to be an opposing defendant before the tribunal.

Turning now to Amendment No. 181 of the noble Lord, Lord Lucas, this amendment would prevent representative actions. The Government believe strongly in an appeals system which is fair and transparent in which the business community and consumers have a fair right of appeal.

If we were to prohibit organisations representing third parties with a sufficient interest to appeal a decision, we would certainly severely prejudice the interests of consumers. An individual consumer may not have the time or resources to appeal a decision on his own; if consumers are to have a real voice in the new system, it must be possible for organisations such as the Consumers Association to be able to appeal a decision on their behalf. The same arguments apply to small traders who may have to rely on their trades institutions. In the light of these explanations, I hope noble Lords who tabled that series of amendments which run through cost efficiency in the nature of the appeal and then the ability of the small man to be represented by what to him seems a Goliath in taking an appeal forward, will see fit to withdraw them.

Lord Lucas

I found that last explanation so convincing that I have entirely forgotten why I tabled the amendment.

Lord Kingsland

In those circumstances, I have no option but to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 178 to 187A not moved.]

Clause 46 agreed to.

Clause 47 [Appeal tribunals]:

Lord Kingsland moved Amendment No. 188: Page 24, line 2, after ("Tribunals") insert ("and such other persons as he considers appropriate, including organisations representing industry").

The noble Lord said: I have some expectation that this amendment will not prove controversial. It simply adds to the list of consultees set out in Clause 47(2). After the word "Tribunals" the amendment seeks to insert, and such other persons as he considers appropriate, including organisations representing industry". Here is one exception to all the other cases that we incorporated in our amendments today when we are expanding the discretion of the Secretary of State, not seeking to contract it. I beg to move.

Lord Simon of Highbury

The final statement made me pause to reflect, but not for too long. Clause 47(2), to which this amendment relates, contains a power for the Secretary of State to make rules in relation to appeals. I should explain that it is the Government's intention that this power should be exercised by statutory instrument subject to annulment. The Bill does not currently provide for that. That is an oversight. I draw the attention of the Committee to Amendment No. 271, relating to Clause 67, which we will come to in due course and which is designed to put that right.

We intend therefore that the rules should be open to parliamentary scrutiny before they are introduced. In drawing up the rules we will also consult the council on tribunals. The new tribunal will, in any case, be subject to scrutiny by the council.

As the noble Lord, Lord Kingsland, implied, we also have every intention of consulting relevant organisations. On the specific point to which this amendment is directed, I am happy to commit to consulting industry interests on draft rules. That was our intention in any case and the Bill does not preclude such consultation.

Again, I feel rather like the reasonable man, although I am becoming more unreasonable every time I say it. The amendment is unnecessary because it is included in the overall intention of the clause. Having heard my explanation, perhaps the noble Lord would be prepared to withdraw the amendment. If not, I shall think carefully about whether it adds to the powers of the Secretary of State in the most reasonable way.

Lord Kingsland

I thank the Minister for his response. I hope that he will reflect on the amendment and by one means or another ensure that the Secretary of State takes into account the various factors that underlie the text. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 47 agreed to.

Clause 48 [Appeals on point of law etc.]:

[Amendments Nos. 188A to 188G not moved.]

Clause 48 agreed to.

10 p.m.

Schedule 8 [Appeals]:

[Amendment No. 189 not moved.]

Lord Lucas moved Amendment No. 190: Page 64, line 41, leave out ("no valid") and insert ("insufficient").

The noble Lord said: This is, I hope. a very simple amendment. It is directed at the end consequences of Clause 46 and what follows by way of third party appeals. Perhaps the Minister would be kind enough to confirm my understanding that this is the sole route of third party appeals provided by the Bill. There has been some suggestion that, somewhere in its crannies and crevices, the Bill gives third parties additional rights to take action on the causes set out in the Bill in the courts rather than through the director. I have heard that, but I have not yet been able to detect it. I hope the Government will confirm that that is not the case and that the third party rights are all and only as set out in Clause 46 and following clauses.

That being the case, I am concerned that those organisations subject to the Bill should be free from vexation and harassment by those who wish to pursue political points, whether based on matters of emotion, ecology, morality or religion, which occasionally afflict people in their battles with companies. It seems to me that that is what this part is dealing with, but it appears to be rather narrowly drawn. It is drawn to say that the appeal "reveals no valid ground". That is an astonishingly strict interpretation. One can think of few circumstances where an appeal would have no valid ground.

With regard to paragraph 7(b), the person who falls under that sub-paragraph would have to be so habitually litigious as to be almost notorious. I would much prefer discretion to be given to the competition commission, on a rather wider scale, to deal with actions and appeals which amount merely to harassment rather than there being any substantial cause behind it which might lead to a substantially varied decision by the director or ought to have led to such a variation in decision. Therefore, I should like to see, if not this amendment, at least something made to the same effect to give the commission the discretion to deal with people seeking to misuse the powers given under the Bill. I welcome the ability of third parties to take action under the Bill but I think it has to be moderated by good sense. I beg to move.

Lord Simon of Highbury

Perhaps I may confirm for the noble Lord, Lord Lucas, that this is the only part of the Bill which refers to the appeal process for third parties. He has no need to look elsewhere for the third party appeal process.

I thank the noble Lord for his suggestion that the formulation "insufficient reason" should be used for consistency, particularly to be consistent with Clause 46(4). The test in that clause relates to the substance of a decision, and not whether, as here, the grounds for appeal are admissible. I have some difficulty in thinking that there is in practical terms any significant difference between the formulation "no valid" and "insufficient". "Valid" is the right word because what the tribunal will be looking at is whether the appellant has a basis for appealing, and not how strong his case is.

To the extent that the amendment may have an effect in practice, it would probably tend to make it more common for the tribunal to reject appeals. I am not persuaded that that would be right. The provision is directed at disallowing appeals based on grounds which are simply not proper grounds for the tribunal to deal with. At an early stage that would be a decision thus saving costs for everyone. It is very important that we do not undermine the arrangements in the Bill which ensure that there is effective recourse to appeal under the new regime.

At this stage debating the words "valid" and "insufficient" would get us into considerable trouble. We take the view that "validity" is the right word because we are looking at whether the appellant has a basis for appeal and not the strength of the case.

Lord Lucas

I thank the Minister for that explanation. Before withdrawing the amendment there are two things I would like to leave on the record. The first is that my question was not whether this is the only appeals mechanism in the Bill for third parties, but whether this is the only part of the Bill which gives additional rights to third parties to attack the evils which are identified particularly in Clauses 2 and 18 of the Bill; in other words, whether in the interstices of this Bill third parties are given the right of independent action through the courts. I do not necessarily require an answer now, but if the answer is yes I would very much like to have it before Report stage.

Secondly, let us suppose we have a third party appealing on the basis that the market share which the director general said existed was 17.9 per cent. when in fact it was 18.3 per cent. Under those circumstances where there is a very minor allegation of error of fact, but possibly a quite correct one, which is unlikely to make any major difference to the findings, will the competition commissioner have to go through the whole panoply of a monopolies commission investigation, or is there in the Bill—and I shall be grateful if the noble Lord can point it out—some power other than that contained in paragraph 7 to exercise summary judgment? If there is no ability to do that, and if the smallest error of fact under paragraph 2(a) is sufficient to trigger a complete investigation, then that needs looking at. I am happy to leave those points to Report stage.

Lord Simon of Highbury

Perhaps I may take up the point again on third party rights. I want to make it absolutely clear that the only rights of appeal for third parties in this Bill are set out in this schedule, as I have said. It is true that third parties have rights to seek damages in the courts as a result of actions held here. As regards the wider point on third party rights under the Bill other than by appeal, I should like to respond to the noble Lord on that subject separately. That point having been made for the record, I shall be delighted if the noble Lord withdraws the amendment.

Lord Lucas

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 8 agreed to.

Lord Haskel

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

House adjourned at nine minutes past ten o'clock.