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. 9, with which is grouped Amendments Nos. 11 to 15, 27, 42 and 43 and 100 to 102.

These amendments are necessary to fill a gap in the investigation provisions of the Bill as currently drafted. The current provisions are largely focused on allowing the director to require the production of documents and explanations of those documents. While "documents" are very widely defined (in Clause 59) to include information "recorded in any form", there are circumstances where it would be essential for the director to be able to require the production of information which is not in such a form but which has to be compiled for the purpose. This may happen in the context of an investigation of a dominant undertaking; for example, where under the Bill as currently drafted, the director would not be able to require the undertaking concerned to produce, say, its sales by volume unless a document containing this information already existed; instead he might have to identify and require individual receipts. Information on market shares might not be compiled systematically by an undertaking in recorded form. It could, however, be compiled, by using the knowledge and experience of the undertaking's sales manager, and this amendment would enable the director to obtain that information, which would otherwise be denied to him.

Similarly, there may be a need for information which is in recorded form to be produced in a different recorded form; for example, the information contained in a large number of individual invoices to be produced, as an overall statement of sales by volume. The power would therefore allow information to be required to be compiled or created to meet the request.

The Bill's powers to investigate suspected infringements of the prohibitions enable the director to require the production of "forecasts". The investigation powers in the Fair Trading Act 1973 had been taken to extend to forecasts. However, the Bill mentions forecasts specifically and the Fair Trading Act provisions do not. This has raised a concern that the inference may be drawn that the 1973 Act does not cover forecasts. Amendments No. 42 and 43 and 100 to 102 are necessary, in tidying up terms, to avoid that inference being drawn. They also deal with the investigation powers in the Competition Act 1980 which will continue to apply for those provisions that are not being repealed.

Moved, That the House do agree with the Commons in their Amendment No.9.—(Lord Simon of Highbury.)