COMMONS AMENDMENT (Hansard, 20 October 1998)

§ Lord Simon of Highbury
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 38. In moving this amendment I should like to speak also to Amendment No. 39. The Bill as drafted is designed to confer rights for persons to take action directly in the UK courts in respect of breach of the prohibitions. We believe that such rights of action have an important role to play in the enforcement of the prohibitions. We wish to ensure that the extent of the right of action for breach of the UK prohibitions is the same as for breach of Articles 85 and 86. Rights of action for breach of Articles 85 and 86 have been clearly held to exist by the UK courts. However, Community law is still in the process of development, for example, in terms of the class of persons who are able to claim such rights.
We want to ensure that our courts can deal with third party rights of action for breach of the domestic provisions as they evolve in the context of Articles 85 and 86. The amendments confirm this. As I said at Third Reading: We would not want a situation where the extent of rights of private action depended on whether the agreement affected trade between member states, often a difficult line to draw".—[Official Report, 5/3/98; col. 1325.] Moved, That the House do agree with the Commons in their Amendment No. 38.—(Lord Simon of Highbury.)

§ Lord Kingsland
My Lords, am I right in thinking that the amendments to which the Minister has spoken relate to Clause 60 of the Bill? Before I turn to the two questions that I wish to put to the Minister, I should like to make a general reflection on his approach to Clause 60. This clause caused us a good deal of heart-searching as well as mind-stretching during Committee and Report stages. There are a number of expressions in Clause 60 with which all your Lordships find great difficulty. The Minister will recall that, at the time, the noble and learned Lord, Lord Brightman, suggested to him that this was a Bill which pre-eminently should have an index of defined expressions. Noble Lords will have noted that in the course of this Session of Parliament no 1383 less than four important Bills have had such an index. I refer to the Data Protection Bill, the School Standards and Framework Bill, the Scotland Bill and the Government of Wales Bill. The Scotland Bill and the Data Protection Bill have 44 defined expressions; the Schools Standards and Framework Bill has 62; and the Government of Wales Bill 42.
Many noble Lords remain puzzled as to why it should be an appropriate approach in those Bills but not with regard to this Bill. When he was at the Bar, the noble and learned Lord, Lord Brightman, was regarded as the greatest draftsman of his generation. The Minister will recall that he actually did the Minister's work for him. I believe that in the application of Clause 60, it would have been of benefit to this House.
I have two questions on Clause 60. First, does the clause apply to Part I of the Act in its entirety? Secondly, on the definition of compatibility, am I right to conclude that compatibility here means that the jurisprudence of the European Court of Justice will prevail in all circumstances except those in which the court, having striven to make them prevail, finds that, in that particular set of circumstances, they cannot?

§ Lord Simon of Highbury
My Lords, perhaps I may briefly reflect on the input into the debate of the noble and learned Lord, Lord Brightman. We discussed it closely. The decision was not to provide the index here. That issue has been well discussed and well argued in this case. However, as noble Lords know, many Bills do not include indexes. The decision was that there would not be an index in this Bill.
The answer to the first question as to whether it applies to Part I in the entirety is yes. On compatibility, we are satisfied that the drafting of Clause 60 accurately expresses the concept that Community jurisprudence is to be followed unless the court is driven to some different interpretation by some provision in that part of the Bill. In all other respects, Part I is not to be interpreted as an ordinary statute. For example, "products" is to be read as including services. An "effect on competition" is to be read as meaning an appreciable effect. That is not how those terms would be interpreted if used in an ordinary UK statute. Interpretation of the Bill is not a two stage process. One does not construe the prohibitions and then compare them with Community jurisprudence. One construes them from the outset on the basis of Clause 60.