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Lord Ezra: My Lords, the point just raised so effectively by the noble Lord, Lord Howie, merits some consideration. I feel quite simply that if the heading "Engineering" could be headed "engineering and technology", as is stated in paragraph 17(f) of Schedule 4, his problem would be solved.
The Earl of Buckinghamshire: My Lords, before the Minister replies to the amendment, I shall speak to
Amendment No. 66 which is grouped with the series of amendments that we are discussing. I should declare an interest as a partner in Watson, Wyatt Partners who are a firm of consulting actuaries and employ benefit consultants. I have been in discussion with the Faculty and the Institute of Actuaries about this amendment. Watson, Wyatt Partners and I are regulated by the Institute of Actuaries.I am concerned that the Competition Bill currently before your Lordships' House does not specifically exempt the actuarial profession from the revisions of Chapter I of the Bill, which as we know are designed to prohibit commercial agreements preventing, restricting or distorting competition. As it is currently drafted, the Bill could open up the professional rules of the actuarial profession to challenge as anti-competitive practices. This is clearly not the intention of the Bill, which in Schedule 4 lists a wide range of professions which will be exempt from Chapter I, including, among others, solicitors, accountants, architects and insolvency practitioners.
The UK's 10,000 or so actuaries are represented by the Faculty of Actuaries in Scotland and the Institute of Actuaries in England and Wales. Like other professional bodies the faculty and the institute are governed by charter which can be altered only by sanction of the Privy Council. The faculty and the institute set their own standards and professional qualifications for the actuarial profession and in order to protect the interests of the consumer.
Before I conclude my remarks, I apologise to the Minister and to your Lordships for not checking the generic title under which Amendment No. 66 has been tabled. It has been tabled under the generic term "Insurance". As I am sure your Lordships are aware, the work of actuaries is not confined solely to insurance. If the Minister accepts this amendment, as I am sure he will, it may be better for the generic term "actuarial" to be used. That would be in line with the other generic terms in Schedule 4. I believe that the omission of actuaries from Schedule 4 of the Bill is an oversight that can be rectified by this simple amendment.
Lord Haskel: My Lords, the discussion we have just had proves how wise the Government are to confine the list in Schedule 4 to those professional services which are excluded from the Restrictive Trade Practices Act by Schedule 1 of that Act. It will be apparent from what I am going to say that the Government do not agree that the exclusion should be widened any further.
The purpose of Schedule 4 of the Bill is not to confer a mark of respectability upon particular professions. The purpose is to carry forward into the Bill an exclusion for the professional rules of those professions which are presently excluded from the Restrictive Trade Practices Act. Those professions are listed in italics under Schedule 4. The suggestion of the noble Lord, Lord Ezra, is helpful because the headings in italics such as "Engineering" carry no weight in the Bill. It is the listed activities which are not in italics which are important. Certainly the Government would consider
whether these headings should be changed. Perhaps that will help to deal with the point raised by the noble Lord, Lord Howie.10.45 p.m.
Lord Howie of Troon: My Lords, it will not do so in any way. Changing "engineering" to "technology" will make no difference to what I said. I am sorry to disappoint my noble friend.
Lord Haskel: My Lords, I turn to the question of actuaries. I do not wish to disparage the profession of actuary, but the fact is that it is not one of those services which is excluded from the Act. If there were a need for actuaries to be reconciled with competition law, they would already have to ensure that they complied. In the light of that point, I hope that the noble Earl will not move Amendment No. 66.
Amendments Nos. 64A and 65 take us into different territory. Instead of adding an exclusion they amend existing exclusions. I do not wish to underestimate the worth of the Engineering Council or the engineering profession. In the noble Lord, Lord Howie, it has a doughty champion. The effect of the amendments would be to narrow the scope of the services whose professional rules may be designated under the Bill.
As I understand it, the purpose of Amendment No. 64A is to make the words in the schedule conform more closely to how optometrists view their profession. However, the present provision referring to the testing of sight is not only longstanding--it is drawn from the Restrictive Trade Practices Act--but it is also drawn from Section 36 of the Opticians Act 1989 which is identical to Section 30 of the Opticians Act 1958. It is true that the provisions need to be seen in their different context and that, for example, the Bill and the RTP Act do not need to concern themselves with the criminal offence of the Opticians Act relating to the testing of sight for the purposes of prescribing glasses. But I do not see a case for changing the longstanding link between the Opticians Act and the provisions in the Bill.
As your Lordships know, the existing criteria are copied from Article 85(3) of the EC treaty. To change the criteria would defeat one of the main objectives of the Bill since it would mean that competition law and practice domestically, and at European level, would diverge.
Objectively justified standards of professional competence and good practice are designed to protect the consumer, and to be objectively justified they should not deny consumers a fair share of the benefits or impose restrictions which are not indispensable to that objective or substantially eliminate competition. I have no doubt that if professional rules are justified they are capable of satisfying these criteria. Of course it may also be that an objectively justified professional rule did not infringe the prohibition in the first place.
We have had a lengthy discussion on professional rules. The Government recognise that a case can be made for a wider exclusion as regards professional rules, and for a narrower exclusion of such rules. We have
sought to take account of the different arguments and to bear in mind both the particular nature of professional rule making and the different historical treatment of particular professional rules.I hope that all noble Lords who have spoken will recognise that other noble Lords have taken a contrary view. The Government believe that they have taken a balanced view on the matter.
Lord Howie of Troon: My Lords, before my noble friend sits down, is he replying to the right amendment? I was not aware that we were talking about professional rules. I do not think that I mentioned professional rules at any point during my brief intervention. Had I known that he would do so, it might have been longer. I will give my noble friend ample time to recover his memory. I was talking about the definition of "engineer", which had nothing whatever to do with rules or anything of the sort. It was entirely to do with the farrago of a definition which is in the Bill. I proposed to him a very simple, two-line amendment which covers the matter adequately. I wonder if he would turn his mind to that and perhaps just say, "Yes, what a good idea".
Lord Haskel: My Lords, I was speaking to Amendments Nos. 64A, 65 and 66. Other noble Lords raised the question of professional rules.
Lord Howie of Troon: My Lords, I wonder if my noble friend would actually reply--
Lord Carter: My Lords, this is Report stage. The noble Lord is allowed to ask some brief questions for elucidation.
Lord Howie of Troon: My Lords, I yield entirely to the Chief Whip.
Baroness Knight of Collingtree: My Lords, in the light of the Minister's remarks, although I am very disappointed, and certain that there will be a time ahead when he will regret the number of court cases that the matter will engender, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 65 to 68 not moved.]
Clause 9 [The criteria for individual and block exemptions]:
[Amendments Nos. 69 and 70 not moved.]
Clause 12 [Requests for Director to examine agreements>:
Lord Simon of Highbury moved Amendment No. 71:
On Question, amendment agreed to.
Clause 14 [Notification for a decision]:
Lord Haskel moved Amendment No. 72:
The noble Lord said: My Lords, in moving this amendment I shall also speak to Amendments Nos. 145, 221 and 222.
These are technical amendments designed to ensure that the term "infringe" is used consistently throughout the Bill. They are drafting amendments. I beg to move.
On Question, amendment agreed to.
Schedule 5 [Notification under Chapter I: Procedure]:
Page 7, line 33, at end insert--
("( ) The Secretary of State may by regulations make provision as to the application of sections 13 to 16 and Schedule 5, with such modifications (if any) as may be prescribed, in cases where the Director--
(a) has given a direction withdrawing an exclusion; or
(b) is considering whether to give such a direction.").
Page 8, line 25, leave out ("if it is not otherwise exempt").
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