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Lord Simon of Highbury moved Amendments Nos. 57 and 58:
On Question, amendments agreed to.
Lord Simon of Highbury moved Amendment No. 59:
The noble Lord said: My Lords, in moving Amendment No. 59, I should like to speak also to Amendment No. 60. Both are technical government amendments. As I said during the first Committee day, a good case has been made for an amendment along the lines of EC Regulation 26/62. This provides for special treatment under Article 85 for certain types of agricultural agreements, including agricultural co-operatives. I am most grateful to the noble Lords, Lord Lucas and Lord Stanley, and to my noble friend Lord Graham of Edmonton for raising the question of the treatment of agricultural agreements.
We are now proposing an exclusion from the Chapter I prohibition of anti-competitive agreements along the lines of EC Regulation 26/62 which covers certain agricultural agreements, including agricultural co-operatives. The exclusion is designed to ensure that agreements in the agricultural sector will be treated under the Bill in a similar way to how they are treated under EC competition law. This furthers our overall objective of seeking, so far as possible, consistency in the treatment of agreements under the EC and UK prohibition systems. Extending the exclusion beyond the scope of agreements covered by EC Regulation 26/62 would not be consistent with these objectives.
As is the case with the exclusions for mergers and agreements cleared under Section 21(2) of the Restrictive Trade Practices Act, the director general will have the ability to clawback individual agreements to be considered under the prohibition. However, such a clawback can be exercised only if the director general considers that the agreement is likely or is intended substantially and unjustifiably to prevent restrict or distort competition in relation to an agricultural product. This is a high threshold, but one which will enable the director general to take action against agreements causing serious harm.
The exclusion also provides a power for the director general to request information from the parties to an agreement which benefits from the exclusion. This is the same information-gathering power as applies to the exclusions for mergers and agreements which have been cleared under Section 21(2) of the Restrictive Trade Practices Act. We have discussed today in relation to those exclusions the reasons why the director general must have this information gathering power as part and parcel of the provision of such automatic exclusions. I beg to move.
Lord Stanley of Alderley: My Lords, I thank the Minister for tabling the amendment and explaining it so fully. I hope that the noble Lord will not accuse me of looking a gift horse in the mouth if I raise certain problems--at least the chief of which are fairly short.
I am not sure that I fully understand why the director general is being given all these powers which are not necessary in other types of business. Due to the speed with which the noble Lord produced the amendment-- I very much welcome that--the agricultural co-operative movement has not really had the time to digest its possible effects--I stress that they are "possible" effects--and in particular how the courts might interpret it. What I do know is that if the noble Lord had not tabled an amendment, the co-operative movement would have been wiped out. That is why I thank him very much.
If events should prove the amendment to be seriously flawed--my lawyers always say that everything could be flawed--so making the future of agricultural co-operatives uncertain, I wonder whether the noble Lord would be prepared to take further steps to correct the matter. I am asking quite a nasty question here. I am most grateful to the noble Lord for tabling the amendment, but I wonder whether he is prepared to let his officials and those of the agricultural co-operative movement meet to discuss their particular problems. I think that they are in as big a muddle as I am.
To save time, perhaps I may break the rules of the House for a moment by thanking the noble Lord for the action that he has taken on my Committee-stage amendment to Schedule 12 on potatoes. As the government consultation period does not expire until 16th March--I am grateful to the noble Lord's officials with regard to this--I shall not move my repeat amendment at this stage of the Bill. I thank the noble Lord for his help on that also.
Lord Simon of Highbury: My Lords, I appreciate the difficulty of the noble Lord, Lord Stanley of Alderley, in trying to get to the bottom of some of the technical points in the Bill. We find ourselves in very much the same position. Without making any commitment to extend the nature of the amendments that we have drafted, we are prepared to meet the NFU, the Federation of Agricultural Co-operatives and other interested parties to take the technical debate to a stage of greater clarity.
On Question, amendment agreed to.
[Amendments Nos. 60 to 62 not moved.]
Schedule 4 [Professional Rules]:
Lord Teviot had given notice of his intention to move Amendment No. 63:
The noble Lord said: My Lords, due to a misunderstanding and following advice I do not wish to proceed with the amendment. My main amendment is Amendment No. 136 in Clause 39. I leave others, in particular my noble friend Lord Selkirk of Douglas and the noble Lord, Lord Howie of Troon, to move their amendments.
Lord Selkirk of Douglas moved Amendment No. 64:
The noble Lord said: My Lords, the amendment clarifies the terms of Schedule 4, Part II, paragraph 1, which details the legal professions whose professional rules are excluded agreements under Clause 3 of the Bill. The Bill strengthens competition law by bringing United Kingdom law more closely into line with the provisions of the Treaty of Rome. It recognises, however, that certain professional rules should be excluded from general competition law because of the value placed on self-regulation by the professions. That exclusion is achieved by Clause 3 and Schedule 4.
The Law Society of Scotland has concerns that the definition of the legal professional services in Schedule 4, Part II, paragraph 2, does not include the profession of notary public. Notaries public are clearly members of the legal profession. In Scotland notaries are governed by the Solicitors (Scotland) Act 1980 which provides for specific admission and removal procedures. A person can be admitted as a notary in Scotland only if he or she is qualified to be admitted as a solicitor. Most applicants for notaries public are admitted as solicitors at the same time. That dual nature renders it logical for notaries to be included in the terms of Schedule 4 to avoid the possibility that solicitor notaries are subject to two competition regimes, one as solicitor and the other as notary.
Notaries in Scotland are subject to the professional rules and regulations of the Law Society of Scotland, and that society is actively engaged in developing the specific regulation of notaries. For example, in February 1997 for the first time the Law Society of Scotland
Scottish notaries are also involved in the cyber notary project relating to electronic data interchange and the role of the trusted third party. The society is closely involved in the creation of a cyber notary association in the United Kingdom which would lead to further development of notarial protection with a requirement for notary specific rules to deal with that new environment. Accordingly, it is likely that within a very short period of time, professional rules and regulations relating specifically to notaries will need to be developed, rather than the current reliance on existing guidance on the common law, or on solicitors' regulations.
The Law Society would like, and would be grateful for, a guarantee from the Minister that all notaries public in the UK will be covered by the new law. The situation which applies to notaries public in England and Wales is somewhat different. In that jurisdiction, notaries are subject to the Court of Faculties under the Ecclesiastical Licences Act 1533. The most recent legislation relating to notaries in England and Wales is contained in the Courts and Legal Services Act 1990. They are also subject to rules enacted by the Master of the Court of Faculties.
In Scotland, on the other hand, notaries were nationalised as long ago as the reign of Mary Queen of Scots. Only in 1990 was the royal prerogative in relation to notaries given up. I move the amendment as I believe it is necessary for the avoidance of doubt and to ensure consistency of approach to the regulation of the legal profession. It has the support of the Society of Public Notaries of London, the Notaries Society of England and Wales, the College of Notaries in Northern Ireland and the Law Society of Scotland. It also has the support of the UK Notarial Forum which met last Friday in Dublin. I beg to move.
Page 48, line 32, leave out from ("apply") to end of line 33 and insert ("to conduct which relates to a coal or steel product to the extent to which the ECSC Treaty gives the Commission exclusive jurisdiction in the matter.
( ) Sub-paragraph (2) ceases to have effect on the expiry date.").
Page 48, line 35, leave out from first ("the") to end of line and insert ("ECSC Treaty; and
"ECSC Treaty" means the Treaty establishing the European Coal and Steel Community.").
Page 48, line 35, at end insert--
("Agricultural products
6A.--(1) The Chapter I prohibition does not apply to an agreement to the extent to which it relates to production of or trade in an agricultural product and--
(a) forms an integral part of a national market organisation;
(b) is necessary for the attainment of the objectives set out in Article 39 of the Treaty; or
(c) is an agreement of farmers or farmers' associations (or associations of such associations) belonging to a single member State which concerns--
(i) the production or sale of agricultural products, or
(ii) the use of joint facilities for the storage, treatment or processing of agricultural products,
and under which there is no obligation to charge identical prices.
(2) If the Commission determines that an agreement does not fulfil the conditions specified by the provision for agricultural products for exclusion from Article 85(1) of the Treaty, the exclusion provided by this paragraph ("the agriculture exclusion") is to be treated as ceasing to apply to the agreement on the date of the decision.
(3) The agriculture exclusion does not apply to a particular agreement if the Director gives a direction under this paragraph to that effect.
(4) If the Director is considering whether to give a direction under this paragraph, he may by notice in writing require any party to the agreement in question to give him such information in connection with the agreement as he may require.
(5) The Director may give a direction under this paragraph only as provided in sub-paragraph (6) or (7).
(6) If before the end of such period as may be specified in rules under section 49 a person fails, without reasonable excuse, to comply with a requirement imposed under sub-paragraph (4), the Director may give a direction under this paragraph.
(7) The Director may also give a direction under this paragraph if he considers that an agreement (whether or not he considers that it infringes the Chapter I prohibition) is likely, or is intended, substantially and unjustifiably to prevent, restrict or distort competition in relation to an agricultural product.
(8) A direction under this paragraph--
(a) must be in writing;
(b) may be made so as to have effect from a date specified in the direction (which may not be earlier than the date on which it is given).
(9) In this paragraph--
"agricultural product" means any product of a kind listed in Annex II to the Treaty; and
"provision for agricultural products" means Council Regulation (EEC) No. 26/62 of 4th April 1962 applying certain rules of competition to production of and trade in agricultural products.").10.15 p.m.
Page 50, line 9, after ("(2),") insert ("and having consulted industry trade bodies,").
Page 50, line 25, leave out ("or solicitors") and insert (", solicitors and Notaries public").
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