Enterprise Bill

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Mr. Waterson: As always, I am following the hon. Gentleman's reasoning closely, but I cannot understand why it would not be a good thing for the consumers as well as perhaps the businesses involved in that scam, which sounds quite serious, to have a more rapid response. Is the hon. Gentleman not looking a gift horse in the mouth?

Mr. McWalter: As hon. Members will know, the problem is that when MPs raise these issues with companies, some do not reply at all and some say that a particular employee has been exceeding their duties. Indeed, that was the standard response of the

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company concerned. It was only the full investigation by The Guardian, which must have taken longer than 60 days, that made me and my constituents realise that there had been a systematic use of powers against the interests of those who were seeking to disentangle themselves from the contracts into which the mobile phone company had ensnared them.

We are talking about businesses that act in such a way. Indeed, the hon. Member for Eastbourne (Mr. Waterson) used the word ''scam''. When I hear about that sort of practice, my first instinct is not to rush for protection, but to try to find out if there have been dubious practices and then to see what the law says can be done about them. As it stands, however, the law is inconsequent in respect of many such practices. Indeed, the hon. Gentleman has tabled an amendment that lists such offences. I welcome that list, as I hope my hon. Friend the Under-Secretary will when we reach that debate.

It is important to act where there are recognised holes in the law and a company is trying not only to profit from them itself, but, as a result, to drive into the ground those other companies that are not willing to use heavy-handed business practices. That needs to be said consistently, because it has not yet been said by the Opposition. It is vital to protect those other companies.

I hope that my hon. Friend the Under-Secretary will address the tenor of the Opposition contributions, which are rather unhelpful, and ensure that super complaints still have teeth after she has tackled the matters to be raised in the debate.

Mr. Alistair Carmichael (Orkney and Shetland): I echo much of what the hon. Member for Hemel Hempstead (Mr. McWalter) said. I go along with the hon. Member for Eastbourne inasmuch as he seemed to be saying that the amendments seek to strike a balance. I want to ensure that in striking such a balance, super complaints and their operation will be effective. Amendment No. 19 would emasculate the effective operation of the super complaints procedure.

Like all hon. Members I bring some baggage to the proceedings: I worked as a prosecutor in Scotland as part of the procurator fiscal service. In Scotland, when a person is remanded in custody prior to trial, proceedings must be commenced within 110 days, which means that an indictment must be served within 80 days. My remarks are in that context, in that I know from personal experience that even the preparation of a not especially complex fraud case within 80 days is exceptionally taxing and sometimes well nigh impossible. Super complaints are more complex than the average fraud. The OFT will do well to achieve a measured and considered response within 90 days, so I am not minded to support the first of the two amendments in the group.

Amendment No. 25 is a different matter. The hon. Member for Eastbourne said that he hoped that the clause would operate only in reducing the period. However, in the Bill as drafted, that is not the case. I am slightly concerned that under the clause as drafted the super complaints procedure may take off in a way that we do not envisage now. It is not unknown for

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there to be questions about the resourcing of Government bodies such as the OFT and I am concerned that the operation of the clause would increase the period simply to alleviate the burden on the OFT. That would be regrettable for the reasons that the hon. Member for Eastbourne outlined; having to fund the OFT so that it could operate efficiently within 90 days would be a good compulsitor on the Government. Therefore, I could not easily allow them the flexibility proposed by subsection (4).

Mr. Djanogly: We have discussed the need to minimise uncertainty for businesses generally. The hon. Member for Hemel Hempstead gave an instance of what could be called a shifty practice, which needs to be looked into. However, there are issues relating to the clause that cause concern. For example, there is no restriction on the number of times that a consumer body can make a complaint, and the OFT has no discretion as to whether or not it makes a preliminary investigation under the 90-day period. It is mandated to do so under the Bill. It must investigate, so companies will necessarily be put at risk of expenses and costs. Those issues are pertinent.

We are talking about a pre-investigation investigation. The hon. Member for Orkney and Shetland touched on that but his comments raised further questions about the criteria that will be used in the context of the pre-investigation. The explanatory notes do not touch on that point. I have not seen it discussed in briefing notes or anywhere else. It would be helpful if the Under-Secretary could tell us what sorts of issues will be considered at the pre-investigation investigation stage. Would the OFT approach the company or other market competitors at this stage?

Mr. Waterson: My hon. Friend is developing an interesting argument. Will the OFT be expected to decide that it has an arguable case, a prima facie case, or possibly a lesser case in which there is something further that it wants to investigate? Taking the points made from experience by the hon. Member for Orkney and Shetland, there will otherwise be a temptation to give an answer on the 90th day, which might simply refer people to another answer further down the road such as, ''We are looking at it, we are taking it seriously and we will continue to investigate.''

Mr. Djanogly: That is a very important point. The criteria will be important. We should bear in mind that after the failure of the amendments at our last sitting, we will be dealing with issues that are not held within the current law. This will not simply be a question of competition; it could relate to further issues. The criteria become even more important and will not necessarily be based on existing procedures. I should be grateful for the Under-Secretary's comments on that.

Companies rightly fear that one type of investigation will lead to another. We should consider how the criteria would change if the OFT proceeded to a full investigation. Would there be a change in emphasis or in the way in which it went about things? We should look at the 90-day or 60-day period in the context of the investigation that it leads to.

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Mr. McWalter: Does the hon. Gentleman accept that as we are dealing with a super complaint, in a sense it would not bear necessarily on any particular company? The question would be whether a whole sector of companies—for argument's sake, let us say mobile phone companies—had a set of practices that conduced to that sector licensing uncompetitive practice on the part of companies within it. It would not necessarily strike an individual company immediately.

Mr. Djanogly: That may well be so, but the example that the hon. Gentleman gave related to one company; what he says would not necessarily be the case. We should look at how those concerns affect companies. Putting it in the context of the fuller investigation, will anything in the Bill restrict the period in which the OFT can mount its full investigation? I have not seen anything but there may be something. Could the Under-Secretary tell us whether the full investigation is in any way restricted? It is all very well arguing whether 60 days or 90 days is more appropriate but if an investigation ends up lasting one year, such as the proposed dentistry case, the argument becomes irrelevant. Such a case could be delayed; what if it extends to two or three years?

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It all comes down to the fact that Governments have deep pockets and can afford to keep investigations going for pretty much as long as they want. Companies may not be able to afford endless investigations; or, if they could, they would probably experience a significant dent in their costs. I would appreciate the Under-Secretary's comments on those issues.

Mr. Mark Field (Cities of London and Westminster): I share the serious concerns that have been expressed. I shall address the amendment, although we also wish to discuss other amendments to clause 11. A stand part debate will be at your discretion, Mr. Beard.

There is increasing concern about the negative publicity created by a super complaint into an industry. It may apply to a raft of companies or to one or two in industries that are perceived as monopolistic. The 90-day moratorium may, as my hon. Friend the Member for Huntingdon (Mr. Djanogly) said, lead to a much longer-lasting inquiry; it may also create increasing uncertainty and allow interested consumer groups and Ministers to play to the gallery in a way similar to the ''rip-off Britain'' campaign on supermarkets in the late 1990s.

Could the Under-Secretary give guidance on what action will be taken within the 90 or 60-day time limit? There is the opportunity to begin a fishing expedition. I would like guidance on how limited the action of the OFT will be in the 90 or 60-day period.

Huw Irranca-Davies (Ogmore): Subsection (4) gives discretion to amend the 90-day period. However, I am sure that the hon. Gentleman would welcome a thorough, detailed investigation of a super complaint rather than a cursory, rushed one. The period of 90 days is wholly appropriate now, to ensure depth and meaning of investigation, but if that changes, it would

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be appropriate to change the period. The Local Government Association, for example, has made representations on the issue; it considers 60 days to be appropriate. The hon. Gentleman said in an earlier sitting that one consumer group believed that the approach in the proposed dentistry case to super complaints was indicative of the general approach that would be taken, but that is not necessarily true—

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