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Lord Simon of Highbury: My Lords, I believe that my noble friend is over-suspicious. These proceedings were already on the stocks 15 months before the official laying of the case. Therefore, the matter had been in preparation for 15 months. As to whether the circumstances today have changed from 1970,

5 Mar 1998 : Column 1317

effectively that is a matter for the court. That is why the court should hear the case and be given the opportunity to reach a judgment upon it.

Lord McNally: My Lords, the Minister has addressed the House with his usual candour. The debate has been peppered with expressions such as "anxiety", "a real dilemma" and "a House divided". That is true. On the other side we have had Hughes against Desai and Stallard against Borrie and on this side we have had Miller against O'Cathain and McNally against Jacobs. We have also heard the noble Lord, Lord Peston, who with his usual professorial humility told us that up until his intervention we had all missed the point. In that respect the debate has followed the usual course.

The Minister is dealing with a competition Bill and has clearly argued the competition case. The Government's health strategy, as stated by the Secretary of State for Health, is to retain as many community pharmacies as possible and encourage trained pharmacists to make a greater contribution to the National Health Service than they make at present. That has given rise to the cross-party debate this evening. We are not sure that to keep to the close tramlines of this Competition Bill will not do grave damage to the Government's other stated objective of expanding pharmacies. In the circumstances, I believe that the House must be divided. It will give Ministers an opportunity to ponder further how to allay the very real anxieties that have been expressed from all Benches this evening. I beg to move.

4.48 p.m.

On Question, Whether the said amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 138; Not-Contents, 81.

Division No. 1

CONTENTS
Aberdare, L.
Addington, L.
Addison, V.
Ailsa, M.
Alderdice, L.
Alexander of Tunis, E.
Anelay of St. Johns, B.
Annaly, L.
Astor of Hever, L.
Belhaven and Stenton, L.
Berners, B.
Biddulph, L.
Blaker, L.
Blatch, B.
Bowness, L.
Bridgeman, V.
Brigstocke, B.
Brougham and Vaux, L.
Burnham, L.
Butterworth, L.
Byford, B.
Cadman, L.
Campbell of Alloway, L.
Campbell of Croy, L.
Clanwilliam, E.
Coleridge, L.
Cope of Berkeley, L.
Courtown, E.
Cowdrey of Tonbridge, L.
Cox, B.
Cranbrook, E.
Cross, V.
Cuckney, L.
Cullen of Ashbourne, L.
Cumberlege, B.
Davidson, V.
Dean of Harptree, L.
Denham, L.
Denman, L.
Dholakia, L.
Dixon-Smith, L.
Donegall, M.
Elles, B.
Erne, E.
Ezra, L.
Fookes, B.
Fraser of Carmyllie, L.
Gainford, L.
Gisborough, L.
Gray of Contin, L.
Haig, E.
Halsbury, E.
Hayhoe, L.
HolmPatrick, L.
Home, E.
Hooper, B.
Hooson, L.
Howe, E.
Hughes, L.
Hurd of Westwell, L.
Hylton-Foster, B.
Ilchester, E.
Kenyon, L.
Kingsland, L.
Kitchener, E.
Leigh, L.
Linklater of Butterstone, B.
Long, V.
Lucas, L.
Lucas of Chilworth, L.
Ludford, B.
Lyell, L.
McColl of Dulwich, L.
McConnell, L.
Mackay of Ardbrecknish, L.
Mackay of Drumadoon, L.
McNally, L. [Teller.]
Manchester, Bp.
Marlesford, L.
Mayhew of Twysden, L.
Merrivale, L.
Mersey, V.
Miller of Hendon, B.
Milverton, L.
Mottistone, L.
Munster, E.
Murton of Lindisfarne, L.
Napier and Ettrick, L.
Naseby, L.
Nelson, E.
Newall, L.
Nicholson of Winterbourne, B.
Northesk, E.
Onslow of Woking, L.
Orr-Ewing, L.
Oxfuird, V.
Peel, E.
Pender, L.
Pilkington of Oxenford, L.
Plummer of St. Marylebone, L.
Quinton, L.
Rankeillour, L.
Rawlings, B.
Redesdale, L.
Rees, L.
Renton, L.
Renwick, L.
Rodgers of Quarry Bank, L.
Russell-Johnston, L.
St. John of Fawsley, L.
Saltoun of Abernethy, Ly.
Seccombe, B.
Selborne, E.
Selkirk of Douglas, L.
Simon of Glaisdale, L.
Skelmersdale, L.
Stair, E.
Manchester, Bp.
Stallard, L. [Teller.]
Steel of Aikwood, L.
Stewartby, L.
Stoddart of Swindon, L.
Swansea, L.
Swinfen, L.
Taylor of Warwick, L.
Tenby, V.
Teviot, L.
Thomas of Gwydir, L.
Thomas of Swynnerton, L.
Thomas of Walliswood, B.
Tope, L.
Trenchard, V.
Walton of Detchant, L.
Weatherill, L.
Wilberforce, L.
Williams of Crosby, B.
Windlesham, L.
Wise, L.
Young, B.

NOT-CONTENTS
Acton, L.
Archer of Sandwell, L.
Berkeley, L.
Blackstone, B.
Borrie, L.
Brooke of Alverthorpe, L.
Burlison, L.
Callaghan of Cardiff, L.
Carmichael of Kelvingrove, L.
Carter, L. [Teller.]
Cocks of Hartcliffe, L.
Currie of Marylebone, L.
David, B.
Davies of Coity, L.
Desai, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Eatwell, L.
Farrington of Ribbleton, B.
Gallacher, L.
Gilbert, L.
Gladwin of Clee, L.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Hanworth, V.
Haskel, L.
Hayman, B.
Hilton of Eggardon, B.
Howie of Troon, L.
Hoyle, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L. [Lord Chancellor.]
Jacobs, L.
Janner of Braunstone, L.
Judd, L.
Kennedy of The Shaws, B.
Kilbracken, L.
Longford, E.
Lovell-Davis, L.
McIntosh of Haringey, L. [Teller.]
Mallalieu, B.
Merlyn-Rees, L.
Milner of Leeds, L.
Molloy, L.
Monkswell, L.
Montague of Oxford, L.
Murray of Epping Forest, L.
Nicol, B.
Northfield, L.
O'Cathain, B.
Paul, L.
Pitkeathley, B.
Ponsonby of Shulbrede, L.
Prys-Davies, L.
Puttnam, L.
Ramsay of Cartvale, B.
Rea, L.
Rendell of Babergh, B.
Richard, L. [Lord Privy Seal.]
Sandwich, E.
Serota, B.
Shannon, E.
Shaughnessy, L.
Shore of Stepney, L.
Sidmouth, V.
Simon of Highbury, L.
Stone of Blackheath, L.
Strabolgi, L.
Strafford, E.
Symons of Vernham Dean, B.
Taverne, L.
Tebbit, L.
Thomas of Macclesfield, L.
Turner of Camden, B.
Walker of Doncaster, L.
Wedderburn of Charlton, L.
Whitty, L.
Wilcox, B.
Williams of Elvel, L.
Williams of Mostyn, L.

Resolved in the affirmative, and amendment agreed to accordingly.

5 Mar 1998 : Column 1319

4.57 p.m.

Clause 2 [Agreements etc. preventing, restricting or distorting competition]:

Lord McNally moved Amendment No. 2:

Page 2, line 23, at end insert ("and has, or is likely to have, a significant effect on competition within the United Kingdom").

The noble Lord said: My Lords, the Minister knows my approach to the Bill. It is a technical competition Bill--which is how I understand the Whips lured him into looking after it in this place--but it is also an opportunity for interested bodies to raise issues where they can get a proper ministerial response. At an earlier stage I raised the matter of look-alikes. The Minister rebuffed the amendment, but it is interesting that the British Brands Group says:

"We are delighted that the position of the Government appears to be moving, albeit slowly. At least it has now been recognised that the problem exists, which represents a considerable advance from where we were in November".

I do not plan to divide the House, which is a subtle ruse to allow the Minister's troops to go home, but in raising these issues I see an opportunity for the Minister to give assurances. The amendments in my name are proposed by representatives of small business who are concerned with the broad sweep of the Bill. Many of its provisions can be handled very easily by large companies but could cause difficulties to small businesses.

The amendment inserts an appreciability test into the Bill. Such a test is crucial for small business. Its effect is to distinguish agreements which have a significant or appreciable effect on competition from those which do not. Such an appreciability test was included in the 1966 draft Bill, but it has been deleted from the present Bill on the grounds that the courts will interpret the legislation in a manner which is consistent with EU jurisprudence. It has been suggested that that will imply an appreciability test in the same way as one is implied in Article 85. But there can be no guarantee that the UK courts will interpret the legislation in that manner. The amendment is intended to end any uncertainty. It helps to ensure that the Bill achieves one of its stated goals and is interpreted consistently with the Treaty of Rome. I beg to move.

Lord Campbell of Alloway: My Lords, I support the amendment. Its origins, and the justification for it, have

5 Mar 1998 : Column 1320

been established by the Commission and the ECJ in a body of jurisprudence on the interpretation of Articles 85 and 86 concerned with affecting trade between member states. Here we are concerned with affecting trade within the UK. For the avoidance of doubt, and because of difficulties over registration, in the early days of Regulation 17 the Commission started applying not just de minimis but the test of,

"has, or is likely to have",

which comes straight from its own jurisprudence,

"a significant effect on competition".

If it were necessary for the Commission and the ECJ, in the interests of certainty and to avoid doubt, to do that, it must surely be appropriate, as was said by the noble Lord, Lord McNally, to bring it onto the face of the Bill.

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