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30 Oct 2002 : Column 942continued
Lords amendment: No. 132, in page 132, line 33, leave out Xsection" and insert Xparagraph"
Miss Johnson: These are a few minor and improving amendments to parts 5, 6 and 7 of the Bill. Clause 191 provides for professional privilege in respect of legal and banking material in the context of investigations of a cartel offence. Amendment No. 133 provides a different way of accounting for the equivalent in Scotland of legal professional privilege. This was a response to a point initially raised by the Opposition in the other place. The amendment means that the current Scottish custom and practice is properly reflected in the Bill. It follows the more recent precedent of the Proceeds of Crime Act 2002, and provides a definition that corresponds more closely with Scottish practice.
Amendments Nos. 134 and 135 correct a technical defect in the provisions relating to competition disqualification undertakings. They make it clear that the OFT or a specified regulator can rely on its own judgment when considering whether a person is unfit to be involved in the management of a company. That requirement applies before it can accept a competition disqualification undertaking from an individual. In making its assessment, the OFT or the regulator will take into account the same considerations in relation to a director's conduct that a court would have to do.
Amendments Nos. 226 and 227 allow for the appointment of independent members to the Competition Commission's governing council. The addition of these independent members will strengthen the leadership of the Competition Commission, and reflects best practice in corporate governance. The council will now consist of a chairman, the deputy-chairman, the chief executive and one or more independent members.
Mr. Robathan: We are discussing very important issues that perhaps require more airing than they have received in the past, especially since many of them were not even discussed in the Lords. Is it true that, because of the programming of discussion in Committee on the Floor of the House, cartels were not even discussed? If so, does the Minister consider that helpful?
Lords amendment: No. 143, in page 151, line 28, after XInvestment" insert Xin".
Miss Johnson: The amendments all relate to part 8 of the Bill. Amendment No. 144 is intended to meet the concerns expressed by the Joint Committee on Human Rights about the provisions in clause 213 concerning applications for interim enforcement orders. The Committee's 21st report stated that it would be beneficial for the Bill to draw attention to the need for the courts to take account of the whole picture, rather than simply accepting the facts presented by the applicant. When an application for an interim enforcement order is made without notice being given to the person named in the application, the whole picture is necessarily limited to the evidence put before the court by the applicant. It is our view that, on an application without notice, the applicant will be obliged to put before the court all material facts, and that the court will consider them in deciding whether to make an interim enforcement order. The Committee agrees that that is likely to be the case, but for clarity amendment No. 144 includes that obligation in the Bill. The amendmentwhich applies to all applications for interim injunctions, and not simply to those made without noticecorresponds to a similar provision in practice direction 25, in England and Wales, on interim injunctions.
Miss Johnson: I had hoped that I was doing that. The Joint Committee has agreed that the presentation of the material facts before the court is important and that is likely to be the case whatever it says in the Bill. The Joint Committee was concerned about the expression of that in the Bill, in terms of the responsibility for human rights. We have taken that guidance and expertise into consideration when tabling Lords amendment No. 144 which makes that explicit.
Mr. Hoban: I appreciate the reasons that the Minister has given for tabling the amendment, and we all agree with them. However, would the provisions increase the time it takes to obtain interim enforcement orders? What impact would it have on the process?
Lords amendment No. 147 is a technical amendment to clause 227, which concerns the supply of goods and services. The definition of the arrangements for supply when the Bill left this House mirrored that currently in section 138(3) of the Fair Trading Act 1973. That section refers to Xdocuments" and Xcorrespondence", which do not take account of today's world of internet transactions and other forms of electronic communications and commerce. Lords amendment No. 147 updates those provisions to include arrangements made by electronic means. Lords amendment No. 143 makes a minor drafting change in the title of the Department of Enterprise, Trade and Investment in Northern Ireland.
Lords amendment: No. 148, in page 166, line 13, at end insert
X( ) In subsection (1) the reference to an enactment includes a reference to an enactment contained in
(a) an Act of the Scottish Parliament;
(b) Northern Ireland legislation;
(c) subordinate legislation."
Miss Johnson: The amendments all relate to the information exchange provisions in part 9 of the Bill. Lords Amendments Nos. 148, 149 and 150 are minor technical amendments to clause 233. Lords amendments Nos. 148 and 149 ensure that the definition of Xenactment" in clause 233 can include Scottish and Northern Ireland legislation, and subordinate legislation. That is to ensure that the Scottish and Northern Ireland legislation can be added to schedule 14 by order after Royal Assent, and so brought within part 9.
Lords Amendment No. 150 ensures that the order-making powers in both subsections (l)(c) and (4) of clause 233 are subject to negative resolution procedure. Subsection (5) of clause 233 of the Bill as it left this House referred only to the power to amend schedule 14 in subsection (4).
Lords Amendments Nos. 151 and 152 bring the disclosure gateway for criminal proceedings in part 9 into line with the equivalent gateway in the Anti- Terrorism, Crime and Security Act 2001. Amendment No. 151 amends the gateway to allow disclosure to Xany person" for the purposes of criminal proceedings. We made that change after listening to concerns expressed by the Local Authorities Co-ordinating body on Regulatory ServicesLACORSand the Alliance Against Counterfeiting and Piracy that part 9 would have prevented trading standards from disclosing information to consumers and private bodies to assist them in bringing private prosecutions. Industry bodies in particular have used such information to assist with successful private prosecutions for copyright theft. We do not wish to prevent such cases being taken in future, and saw no reason why the gateway for criminal proceedings in this Bill should be any narrower than that in the Anti-Terrorism, Crime and Security Act 2001.