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Lord Kingsland moved Amendment No. 147:
The noble Lord said: My Lords, this amendment is concerned with the circumstances in which the existence of a right of appeal against a decision does not prejudice the right of the individual against whom that decision was made to go to the courts to establish the unlawfulness of that decision. I shall assume that the
Lord Simon of Highbury: My Lords, the noble Lord will be extremely relieved to know that he will not have to sit and listen for long because I can confirm to him that we are doing nothing in the Bill to prevent the application of the normal rules of judicial review. Therefore, the lawfulness of decisions may be tested in the courts. I am very grateful to the noble Lord for giving me the opportunity to make that point clear.
Lord Kingsland: My Lords, I am much obliged to the noble Lord for that reply. In those circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 46 [Third party appeals]:
[Amendments Nos. 147A to 149D not moved.]
Lord Haskel moved Amendment No. 149E:
The noble Lord said: My Lords, this amendment has already been spoken to. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie moved Amendment No. 150:
The noble and learned Lord said: My Lords, in moving this amendment, I should like to speak also to Amendments Nos. 151 and 152. Clause 47 gives the Secretary of State the power to make rules for the competition commission appeals tribunal, but provides that the provisions of Schedule 8 shall not be taken to restrict the Secretary of State's powers in respect of such rules. I hope that it reassures the Minister to know that our amendments are intended only to probe the extent of the Secretary of State's power to override the provisions of Schedule 8. I beg to move.
Lord Haskel: My Lords, the noble and learned Lord wishes to probe the extent of the powers. It may be that the noble and learned Lord's concern is to ensure that the power is not used to make rules about substantive legal points. If so, I can assure him that that is not at all our intention. Indeed, in construing the power as a whole it is clear that this is not a power to make rules about substantive competition law and cannot properly be used that way.
It is however important to ensure that content of the rules is not limited by Schedule 8. It would lengthen the Bill unnecessarily to deal with all the matters that may be contained in the rules in that schedule. We have picked out in the schedule various important points to indicate the type of rules we would intend to be able to make, and to make sure that there is a power to make rules on points where it may not otherwise be clear from the Bill that the power existed.
Amendment No. 152 relates to the power to include in the tribunal rules provisions about charging fees in relation to the costs of the tribunal. I have considerable sympathy with the spirit of the noble Lord's amendment. Given the commercial nature of the matters covered by this Bill, it is evident that the large majority of parties to appeals is likely to have access to considerable corporate funds. Nevertheless, if fees are to be charged in particular circumstances, we will indeed wish to be satisfied that this will not unreasonably deter proper access to the tribunal. I hope that those explanations satisfy the noble and learned Lord.
Lord Fraser of Carmyllie: My Lords, at this stage I am tempted to say to the noble Lord that that reply certainly does not satisfy me and thus to detain him for a great deal longer on a Thursday evening. However, the noble Lord may rest assured that I do not intend to do so. Having had to approach this Bill from the point of view of Opposition for the first time, it is interesting to note that not only probing amendments, but also Pepper amendments are being tabled in order to secure from time to time statements from the Government about what is intended in relation to any particular statutory provision. That is extremely valuable. The noble Lord has discharged that responsibility very adequately and, on that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 151 to 152A not moved.]
Lord McIntosh of Haringey: My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.
Clause 1 [Statutory interest]:
Lord Clinton-Davis moved Amendment No. 1:
The noble Lord said: My Lords, in moving Amendment No. 1, it may be for the convenience of the House if we consider also Amendments Nos. 2, 3, 7, 11 and 17.
Our policy has been that interest due under the proposed legislation should be treated for all purposes in the same way as interest due under a term of a contract. It was for that reason that it was decided that the statutory right to interest should have effect as an implied term in contracts. Since there has been some question of whether the Bill as presently drafted ensures identical treatment in all cases, we decided to reflect further on the matter. In moving this amendment, I want
The courts have regarded some statutory interventions in contract law as statutory rather than contractual even where the means adopted by the statute is contractual. That is a good reason for proceeding as we have. I hope that the House will feel that the Government have reacted prudently to the advice that we have received, for which I am most grateful. I beg to move.
Lord Fraser of Carmyllie: My Lords, in responding briefly to the noble Lord, first we on this side of the House extend our warm thanks for the way in which he has so positively responded to a number of the concerns expressed in Committee. I hope that his department, and other departments, will recognise that the use of the Moses Room for such Committee stages can yield some real advantages in that we get through the business quickly. If constructive proposals are advanced, the Government then have the opportunity to reflect on them and to bring forward their own amendments. That is a particular advantage with Bills such as this.
As I intend to intervene on only this amendment, I also thank the noble Lord for his letter responding to a number of the points that I raised in relation to Scotland. The noble Lord has been good enough to let me know that a copy of that letter has been placed in the Library. I know that there is a copy in the Library, but it has always been a mystery to me how other noble Lords are meant to discover that--that is, unless one goes along to the Library from time to time and asks, "Has Lord Clinton-Davis written any letters to anybody, and has he placed copies here in the Library?". As I regard the noble Lord's response as extremely helpful, I take this opportunity to put on a rather more public record the fact that he has given me a full reply to my points. Those in Scotland and elsewhere who are concerned about this matter now have due notice of where they can secure a copy of that response. I thank the noble Lord for that.
Perhaps I may now place on the record one point of concern. I accept what the noble Lord says both in relation to this Bill and to that on Scotland, but I have some unease. If a transaction across the Border were to go to court, there might in accordance with principles of legal and commercial certainty--theoretically at least--be three different rates of interest. That is undesirable but, regrettably, it is a necessary consequence both of the constitutional changes proposed and of this Bill. With only that observation, I repeat my gratitude to the noble Lord for the positive and constructive way in which he has responded to my concerns.
Lord Ezra: My Lords, I reiterate the comments of the noble and learned Lord, Lord Fraser. I thank the noble Lord, Lord Clinton-Davis, for the way in which the more relaxed atmosphere of the Moses Room was used to such good advantage. I entirely support the amendment that he has just moved. I am also grateful for the individual meetings organised by the noble Lord in which matters could be gone into further. We seem
Lord Clinton-Davis: My Lords, I am most grateful for the very courteous and pleasant remarks that have been made about the way in which I have sought to respond to the debates that have taken place in this Chamber. I have also learnt a great deal. I was always under the impression that all those Peers who could be seen in the Library were looking for letters from me. I am equally puzzled. I have been the subject of such response before. I have never found anything in the Library that is remotely relevant to my concerns in relation to such Bills. Nevertheless, I appreciate what has been said. Noble Lords may perhaps begin to feel that flattery will get them anywhere.
As to the Moses Room procedure, this was the first such Bill in which I was involved as a Minister. I have done it before when in Opposition. I believe that it has a purpose. Perhaps one of its disadvantages is that only those who are vitally interested in the Bill will attend, whereas when the House sits like this the Benches are crowded. I believe that it has a positive advantage, and I am glad that both noble Lords have spoken as they have.
On Question, amendment agreed to.
Page 23, line 14, at end insert--
("( ) The existence of a right of appeal against a decision shall not prejudice the right of the person in respect of whose conduct that decision is made from commencing legal proceedings to challenge the lawfulness of that decision.").
Page 24, line 2, after ("Tribunals") insert ("and such other persons as he considers appropriate").
Page 24, line 2, after ("rules") insert ("about procedural and other matters").
7.54 p.m.
Page 1, line 8, leave out from ("interest") to ("in") in line 9.
8 p.m.
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