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Lord Kingsland had given notice of his intention to move Amendment No. 169A:


Page 70, line 45, at end insert--
("(3B) If, in the exercise of his functions under this Act, the Director decides to impugn a matter on grounds within the Chapter I prohibition or Chapter II prohibition of the Competition Act 1998, that decision shall be treated as a decision for the purposes of section 45 of that Act.
(3C) The Director shall give written notice to any person likely to be affected by any decision made in accordance with subsection (3B) above.
(3D) Following the making of a decision in accordance with subsection (3B) above, the Director shall not take any enforcement action under this Act in respect of the matter which is the subject of that decision--
(a) until the end of the period for giving notice of appeal against the decision; or
(b) if such an appeal is made, until that appeal is determined or withdrawn."").

The noble Lord said: My Lords, I have already spoken to this amendment, but I have heard the Minister's response. While thanking him very much indeed for the specific remarks he made about the electricity industry in the context of Amendment

23 Feb 1998 : Column 498

No. 172, I am extremely disappointed about the manner in which he dealt with the issue of parallel jurisdiction exercised by the regulator.

The effect of what the Minister said is this: by this Bill he will be amending the regulatory Bills. Through his interpretation of what the regulator can do, the Minister will be handing over a whole range of powers to each one of the regulators that they do not have in the Act. It also seems to break the fundamental code of sportsmanship which ought to apply to the exercise of the regulatory regime. It is very important that enterprises are given a fair chance. Fairness is now part of our constitution. It has become part of it through decisions made in a series of cases in judicial review. It is now going to be part of it in statutory form through the incorporation of the Bill of Human Rights. That fairness has to be reflected in the Competition Bill just as it will have to be reflected in all Bills that are made by your Lordships' House in future.

I have reflected on what the Minister said. I am certainly not going to press the amendment to a vote, but it is a matter to which the Opposition will be returning at Third Reading.

The Deputy Speaker (Baroness Lockwood): My Lords, is the noble Lord moving Amendment No. 169A?

Lord Kingsland: My Lords, no.

[Amendment No. 169A not moved.]

[Amendments Nos. 170 and 171 not moved.]

[Amendment No. 171A had been withdrawn from the Marshalled List.]

[Amendments Nos. 171H, 171B and 171J not moved.]

[Amendment No. 171C had been withdrawn from the Marshalled List.]

[Amendment No. 171K not moved.]

Lord Haskel moved Amendment No. 171D:


Page 76, line 29, leave out from beginning to first ("the") in line 30 and insert ("In selecting a group to perform the Commission's functions in relation to any such reference,").

The noble Lord said: My Lords, we have already debated this amendment on Day 2. We considered it with Amendment No. 142A. I beg to move.

On Question, amendment agreed to.

Lord Haskel moved Amendments Nos. 171E to 171G:


Page 76, line 50, at end insert--
("( ) At the end of section 101, insert--
"(6) Information obtained by the Director in the exercise of functions which are exercisable concurrently with the Director General of Fair Trading under Part I of the Competition Act 1998 is subject to sections 53 and 54 of that Act (disclosure) and not to subsections (1) to (5) of this section."").
Page 77, line 34, at end insert--
("( ) At the end of section 42, insert--
"(7) Information obtained by the Director in the exercise of functions which are exercisable concurrently with the Director General of Fair Trading under Part I of the Competition Act 1998 is subject to sections 53 and 54 of that Act (disclosure) and not to subsections (1) to (6) of this section."").

23 Feb 1998 : Column 499


Page 78, line 20, leave out from beginning to first ("the") in line 21 and insert ("In selecting a group to perform the Commission's functions in relation to any such reference,").

On Question, amendments agreed to.

[Amendments Nos. 172 to 174A not moved.]

Lord Haskel moved Amendments Nos. 174B to 174D:


Page 78, line 47, at end insert--
("( ) At the end of section 57, insert--
"(7) Information obtained by the Director in the exercise of functions which are exercisable concurrently with the Director General of Fair Trading under Part I of the Competition Act 1998 is subject to sections 53 and 54 of that Act (disclosure) and not to subsections (1) to (6) of this section."").
Page 79, line 28, leave out from beginning to first ("the") in line 29 and insert ("In selecting a group to perform the Commission's functions in relation to any such reference,").
Page 79, line 50, at end insert--
("( ) After section 206(9) (restriction on disclosure of information), insert--
"(9A) Information obtained by the Director in the exercise of functions which are exercisable concurrently with the Director General of Fair Trading under Part I of the Competition Act 1998 is subject to sections 53 and 54 of that Act (disclosure) and not to subsections (1) to (9) of this section."").

The noble Lord said: My Lords, we debated this group with Amendment No. 164D. I beg to move.

On Question, amendments agreed to.

Lord McNally moved Amendment No. 174E:


Page 80, line 45, leave out from beginning to end of line 14 on page 81.

The noble Lord said: My Lords, your Lordships will be aware how assiduous an attendee my noble friend Lord Ezra has been at our deliberations on this Bill. He cannot be here this evening and it is with his leave and on his behalf that I am moving this amendment which he thinks deserves clarification from Ministers.

The amendment concerns the interaction between the Bill and the Railways Act 1993. Under that Act, a train operating company which enters into an agreement to use the railway network, or a station, or a maintenance depot can do so only in accordance with directions issued by the railway regulator. The so-called "access agreements" are scrutinised carefully by the rail regulator who normally requires changes to be made to a proposed agreement when he directs the parties to enter into it. In giving his directions, the regulator has a duty to follow a number of criteria set out in the Railways Act, including acting,


    "in the manner which he considers best calculated ... to promote competition in the provision of railway services".

The result is that access agreements are entered into only on the direction of the railway regulator, following detailed scrutiny and with the object of promoting competition.

In those circumstances, it would not make sense for the agreements to be subject to the prohibitions in this

23 Feb 1998 : Column 500

Bill. It is my noble friend's understanding that they are excluded by Schedule 3(3). This excludes agreements made,


    "in order to comply with a legal requirement".

I hope that the Minister will confirm that that is his understanding.

If my noble friend is right that access agreements are excluded from the prohibitions, then sub-paragraphs (5) and (6) of Schedule 10(15) are redundant. They introduce consequential amendments to the Railways Act which would specifically empower the rail regulator to require amendments to be made to an access agreement entered into on his direction if it has infringed a Chapter I or Chapter II prohibition, but an agreement which is excluded from the prohibitions cannot infringe them.

Amendment No. 174E removes that unnecessary change to the Railways Act. If the amendment is not made, the changes to the Railways Act will not only undermine confidence in the commercial and regulatory arrangements underpinning the restructured railway industry, but will also cast doubt on the effectiveness of Schedule 3 in excluding agreements made to comply with a legal requirement. I beg to move.

Lord Simon of Highbury: My Lords, the last time that the noble Lord, Lord McNally, and I exchanged views in a quiet and thoughtful manner in this House, and I made what I thought was a quiet and thoughtful response, the noble Lord said, "What the Minister means is 'get lost'". I am warning the noble Lord that I shall try again.

As the noble Lord described, the Bill inserts a provision into the Railways Act 1993. I have some sympathy with the concerns raised by the noble Lord. To the extent that the terms of access agreements are required by the regulator, they will be excluded under Schedule 3. The provision in Schedule 10 is not intended to cast doubt on that. It would apply only in circumstances where the provisions of access agreements are not legal requirements. I am advised that that might apply in the case of amendments to access agreements.

Amendment No. 174E would not produce the result of precluding the application of the powers in the Bill to access agreements to the extent that they were not legal requirements. Instead, it would leave uncertain whether the bar in the Railways Act on the regulator requiring amendments to such agreements did or did not apply to the powers of the regulator under the Bill so far as concerned any provisions of an access agreement that were not legally required.

I am not therefore persuaded that the Bill is wrong as drafted, but I am prepared to reflect carefully on the points that the noble Lord has made to assess whether any change to the Bill would be desirable. With the assurance that we will reflect upon this matter, I invite the noble Lord to withdraw his amendment.


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