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Standing Committee Debates
Enterprise Bill

Enterprise Bill

Column Number: 493

Standing Committee B

Tuesday 7 May 2002


[Mr. Nigel Beard in the Chair]

Enterprise Bill

Clause 163

Advice and information

Question proposed [this day], That the clause stand part of the Bill.

4.30 pm

Question again proposed.

Question put and agreed to.

Clause 163 ordered to stand part of the Bill.

Clause 164

Further publicity requirements: Part 4

Mr. Nigel Waterson (Eastbourne): I beg to move amendment No. 316, in clause 164, page 120, line 5, at end insert

    'but should be published as soon after such action or decision as is reasonably practicable.'.

Welcome back to our deliberations, Mr. Beard. We have been racing ahead; this morning the Government accepted a series of minor amendments tabled by me that have to be incorporated into a later stage of the Bill. I hope that my luck will hold.

This is an unobjectionable little amendment that would ensure that publication takes place soon. There is no earthly reason why it should not be done promptly but it is as well that it should be in the Bill. I cannot imagine any reasonable Minister having a problem with the amendment.

The Parliamentary Under-Secretary of State for Trade and Industry (Miss Melanie Johnson): The amendment would ensure that where reasons for decisions are not published at the time of the decision they are published as soon as is reasonably practicable after the decision has been taken. It is our intention that the requirement to publish reasons for decisions will increase the transparency of the operation of the regime; it will also increase the public accountability of the decision makers.

Subsection (6) provides that where it is not reasonably practicable to do so, reasons are not required to be published at the same time as the decision concerned is taken. However, I assure the hon. Gentleman that it is implicit in the subsection, as it is in the rest of the clause, that the requirements to publish should be met as soon as is practicable. It is not therefore necessary to add to the provision and we do not want to treat it differently from the rest of the clause. I sympathise with the reasons for tabling the amendment, but it is unnecessary. In any event, we

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shall act in accordance with the hon. Gentleman's wishes in this regard. I hope that he will ask leave to withdraw the amendment.

Mr. Waterson: I do not know what has happened to the Minister since we broke for lunch; she is in a much less amenable mood than she was. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 272, in clause 164, page 120, leave out lines 8 to 10.—[Miss Johnson.]

Clause 164, as amended, ordered to stand part of the Bill.

Clause 165

Defamation: Part 4

Question proposed, That the clause stand part of the Bill.

Mr. Waterson: You may remember, Mr. Beard, that we had a short debate on defamation under a different clause, the number of which escapes me. I do not want to repeat that debate but I said then that I was quizzical about whether we should apply a blanket privilege in terms of the law of defamation to what was done earlier in the Bill. Our deliberations in Committee and in the Chamber are subject to absolute privilege, as are court and tribunal proceedings, but there are significant risks attached to qualified privilege, not least because if malice is proved, an action for defamation can be taken.

By way of parenthesis, one of the leading cases on parliamentary privilege involved a previous hon. Member for Wealden and the Church of Scientology. It established that parliamentary privilege is absolute in every respect, and I hope that my hon. Friend the Member for Wealden (Mr. Hendry) does not have go through any similar litigation during his long and distinguished career in this place.

I wanted to return to this subject because of the words

    ''in the exercise of any of their functions under this Part.''

Anything that remotely approximates to a judicial process or is equivalent our deliberations, including matters such as a Competition Appeal Tribunal hearing or a formal investigation by the Office of Fair Trading or the Competition Commission, should attract absolute privilege. However, the clause goes too far in giving that privilege in

    ''any of their functions under this Part.''

Some of the less important functions are not quasi-judicial or quasi-parliamentary and should attract only qualified privilege. There will be no risk at all to those involved if they say what they say on appropriate occasions and in the absence of malice. If there were an occasion—I cannot image one—when those conditions were not met, an action could properly lie. We are debating potentially highly explosive matters, including corporate reputation and share prices, in which ill-advised or malicious comments can have a disastrous effect on both individuals and companies.

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The clause is drawn too widely. I have explained why qualified privilege has a place in the Bill, and I will be interested to hear the Minister's thoughts.

Mr. Jonathan Djanogly (Huntingdon): Do the proposals in the clause reflect existing legislation or do they differ from what exists?

Miss Johnson: I am grateful for hon. Members' interest in the clause and I agree that there are some important issues.

I should say first that the Fair Trading Act 1973 currently provides similar protection in undertakings and reports, and the clause will carry forward that protection and update the provision to ensure that all the authorities' functions are covered. Providing protection from actions for defamation is necessary to ensure that parties cannot seek redress from the authorities for statements that they made in carrying out their functions under the market's regime. That is why it is important that the measure covers all the functions of the authorities in question.

The procedures in the new legislation are different because we are seeking greater transparency and, as the hon. Gentleman will appreciate, a greater range of statements will be made. However, under the 1973 Act, the protection was attached to similar statements when they were made through Parliament, and we simply want to update the provision.

Mr. Djanogly: Am I to understand that the extension means that the protection will not now cover statements only made through Parliament, but those made outside as well?

Miss Johnson: Yes.

Question put and agreed to.

Clause 165 ordered to stand part of the Bill.

Clause 166

Investigation powers of OFT

Question proposed, That the clause stand part of the Bill.

Mr. Waterson: We have concerns that echo those of the CBI about the breadth of the powers in clauses 166 and 167, which give the OFT powers during preliminary investigations. They seem excessive compared with those of other investigative bodies, when no offence has been shown to have been committed, and are more substantial than those in clause 184 to investigate cartels. They also exceed those provided by the Competition Act 1998. The CBI says:

    ''The powers are disproportionate and these clauses are unnecessary whilst the Competition Act is in place.''

We do not seek to scrap the 1998 Act during consideration of the Bill, but I suppose that the Government's argument is that we are trying to build

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on those provisions instead. The powers appear to be extraordinarily wide, especially during preliminary investigations. The CBI continues:

    ''It is the potential excessive use of these powers in combination with the widened scope to trawl through industry looking for conduct or structures that might be anti-competitive which is of such concern.''

We have already discussed the potential cost of such investigations and their impact on companies' resources. The CBI has a separate concern that such investigations might have an impact on the willingness of companies to do business in this country rather than anywhere else. There is a similar argument about wealthy individuals paying full British tax, which the Treasury is currently reviewing. It is difficult not to see the Treasury's argument in favour of their doing so. Those people, like the companies I mentioned, have enormous choice about where they do business. I would not like the clause and the powers that it provides to be seen as a way of discouraging companies from being set up in this country.

We agree with the CBI that the powers are disproportionate, especially during preliminary investigations, and I urge the Minister to reconsider them.

Dr. Vincent Cable (Twickenham): Will the Minister comment on a story this morning on the front page of the Financial Times, which I believe related to the powers under the clause? It may have come from elsewhere, such as the lobbies or her Department. It suggested that the Government intend the powers in the clause to provide for draconian actions such as telephone tapping and other surveillance techniques. The people who reported the story may have got it badly wrong, but the extent to which Government powers could be used alarmed me. I hope that the Minister will take the opportunity to refute the lurid story.

Miss Johnson: On the CBI's claims, we believe that the powers are appropriate. I do not agree that they are tougher than those for cartel investigations. The monopolies regime grants the OFT powers of entry. We have replaced those powers with the power to require persons to attend at a specified time and place to give evidence. That is better tailored to the regime. The powers are similar to those for cartel investigations, but the market's power extends to requiring estimates and forecasts, as they are likely to be relevant to that type of inquiry.

The story mentioned by the hon. Member for Twickenham (Dr. Cable) related to a criminal offence in relation to cartels, not to Competition Commission reports. That may help the hon. Gentleman to get the story straight.

Question put and agreed to.

Clause 166 ordered to stand part of the Bill.

Clause 167 ordered to stand part of the Bill.

Column Number: 497


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