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Lord St. John of Bletso: A recurring theme in several amendments, and one which was emphasised by the noble Lord, Lord Ezra, is that legal certainty is essential and that those applying the law must do so in a consistent fashion. The prohibitions in the Bill contain wide discretions and it is vital that those discretions are applied consistently. That is why Clause 58, the general principles clause importing European jurisprudence, is very important.
That, however, does not solve the problem. In our deliberations on Clause 50, on guidelines, we heard it suggested that neither will remove the problem. For
those reasons, I am concerned that Schedule 10 gives powers of adjudication to sectoral regulators in addition to the courts and the DGFT.The problem is compounded by the fact that Schedule 10 makes the objectives of the sectoral regulators matters to which they may have regard when they apply the regulations. That statement departs from the European approach, where competition policy is centralised in DGIV.
Those features of the Bill will mean more uncertainty and inconsistency rather than less. Even if the Minister demonstrates a case for complexity and duplication in the utility sectors, I do not believe that such a case should be brought in the information technology field. I and several other noble Lords at Second Reading stressed that the communications, computing and broadcasting industries are of vital importance to the economy and to international transactions. The right body to apply competition law in this field is the United Kingdom's national competition authority and not a regulator of a particular sector. For those reasons, I support the amendment.
Lord Borrie: The noble Lord, Lord Ezra, made a powerful case, particularly on consistency, for there being one regulator, the Director General of Fair Trading, instead of eight regulators, to exercise significant powers with important penalties attached to the prohibitions.
At Second Reading I drew attention to one important area of competition policy which is not covered by the Bill, namely mergers and takeovers, where consistency is achieved by the Director General of Fair Trading being the sole channel through which advice is given to the Secretary of State for Trade and Industry for making references to the Monopolies and Mergers Commission. If a problem arises relating to a merger or takeover in the field of water, telecommunications or mixed utilities, then the different regulators express their points of view. Those views are encouraged and welcomed by the Director General of Fair Trading, they are fed in to the process of advice and, if the Secretary of State agrees, there is a reference to the Monopolies and Mergers Commission. That is a very strong case.
We want to achieve consistency not only with actions but also with advice and guidelines. I have had a few more days than your Lordships to think about the letter that was quoted by the Minister today because it was referred to at a conference that I attended last week on the subject of the Competition Bill. I was impressed by the fact that the Office of Fair Trading is already engaged, through a working party, in consultation and discussions with the other regulators to try to achieve consistency now in terms of advice and information. There will therefore be no lack of consistency.
The other arguments put forward by the noble Lord, Lord Ezra, were also strong. There are now multi-utility conglomerates. We already have a problem when there are several different utility regulators, let alone the Office of Fair Trading, concerned with companies like United Utilities and HYDER.
I do not think that I can support the amendment because, like the noble Lord, Lord Mottistone, I feel that the noble Lord, Lord Ezra, is before his time. We do not yet have the report, let alone the outcome, of the Government's review of the utilities.
Since Second Reading I have thought about whether we should wipe out all other regulators in terms of their having any powers under the Bill or allow them to have concurrent powers which are subject to the review, and, in the light of that, for reasons of conglomeracy and other reasons that have been argued, whether some of those regulators should be merged. It might be desirable to reduce the number of different regulators. All the Bill does is to preserve the status quo until the review of the utilities is completed. If the Minister can say that the Government reserve the right to revise and amend what will be in the Competition Act 1998 in the light of the utilities review, I would be satisfied if the specific regulators were to retain concurrent jurisdiction in these matters. They have concurrent jurisdiction under the existing law on competition policy matters apart from mergers. I would prefer that course rather than to go along with the view of the noble Lord, Lord Ezra, that the Bill should bring all of these powers into the hands of the Director General of Fair Trading.
6 p.m.
Lord Fraser of Carmyllie: Although my name is not attached to the amendment, I associate myself with the remarks of the noble Lord, Lord Ezra. As he said, this is an important group of amendments. It relates to one of the central themes within the Bill which, I have no doubt, for the public good we must resolve as best we can. Having said that, I am bound to say that I agree in large measure with the noble Lord, Lord Borrie. It is difficult to reach a settled view about overlap or concurrence when we do not know what will be the outcome of the utility review. In such circumstances, I would not be inviting the noble Lord to take the mood of the Committee on the amendment, but that does not make it any the less important.
As the noble Lord rightly pointed out, we are seeing almost on a daily basis a greater and greater involvement of a number of conglomerate companies across a wide range of utility activity. If that is the case, there may be problems in trying to determine who should or should not undertake the necessary investigations and do the necessary work. If these matters are to be settled over lunch, I have no doubt that it would have to be a table for more than two if we look at the way that things are now developing.
At the same time, I am conscious that there are powerful, effective and formidable regulators who are confident that, as things are proposed in the Bill, there is such a scheme that there would not be problems. From time to time I regard myself as courageous, but I do not cross swords with Clare Spottiswoode in any foolhardy fashion. She has indicated that she is satisfied with the powers that she has and is confident that in the way the scheme is settled there will be no risk of double jeopardy or duplication.
There is a question I should like to ask the Minister which stems from my correspondence with Clare Spottiswoode. She states:
- "Concurrent powers will not lead to the Director General of Fair Trading and the DGGS both taking action under the new legislation in relation to the same conduct because the Gas Act will specifically require them not to do so and to consult before exercising their concurrent powers".
I shall take her word for it that such powers exist under the Gas Act, but what I do not know--I should be grateful for an answer--is whether in all the other statutes establishing such regulators in particular sectoral utilities there is the same power.
There is not just that problem. Even were I to be wholly satisfied that between the director general and the regulators there was no such problem, part of the scheme of the Bill is again to give powerful rights to third parties. That still troubles me. We started on this debate on Second Reading. Even if a satisfactory agreement is arrived at between the regulator and the director general as to who should take the matter forward, that would seem not to be an end to the matter because third parties could intervene. I should again be grateful if the Minister could give some explanation and contradict me on that or, if I have understood it correctly, acknowledge that that is indeed a complication in the scheme of things.
I do not follow my noble friend Lord Mottistone into the world of telecommunications because, as he correctly identified, there are subsequent amendments which deal with telecommunications. For the reasons others have given, I believe that telecommunications should be dealt with separately. With the way telecommunications have expanded, it is difficult to see how having just one regulator attempting to deal with all that might be described as telecommunications remains as valid as it was when Oftel was first set up. I should be grateful to the Minister if he would reply on that point. I should like to return to this matter at some later stage, and acknowledge that because of the expected utility review, the publication of which I hope we shall still see in January before we reach Report stage, this is not something that we could hope to settle this evening.
Lord Desai: I should like to ask a question on what the noble and learned Lord, Lord Fraser, and my noble friend Lord Borrie have said. They know much more about practical things than I do. It seems to me that we are being told that the time is not right. But that we should not worry because it soon will be because the utility review will be published. Given all that we have said about the pace of technological change and the overlap, the balance of probabilities suggests to me that the review will more or less come to the conclusion to which we are now coming. For once a little foresight will not hurt in the area of legislation, because with the previous government every year we had either an education Bill or a crime Bill to obviate the mistakes of an earlier Bill.
I want to ask my noble friend the Minister, my noble friend Lord Borrie and the noble and learned Lord whether it is not now time to anticipate future developments a little, give the amendment a fair wind and save ourselves a great deal of time.
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