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Lord McNally: My Lords, as the Minister will be aware, my noble friend Lord Ezra, who cannot be with us this evening, is the guru of these Benches on concurrence. It seems that Ministers are trying to meet real concerns while dealing with practicalities. One easy way of avoiding any regulator is to behave oneself. That might be a good rule for some companies.
Did I understand the Minister to say--we will all be aware how thoroughly British Telecom has briefed on this matter--that the whole question of telecoms regulation is, as it were, in the melting pot as technologies converge?
Lord Desai: My Lords, is the noble Lord in order? We are on Third Reading.
Lord McNally: My Lords, I am asking the Minister a question, but I defer to the greater knowledge of procedure of the noble Lord, Lord Desai. I rest my point there.
Lord Sempill: My Lords, I am grateful to the Minister for his reply. I am disappointed that he is unable to support the amendment. I mentioned earlier that I arrived on the scene very late. My knowledge of the issues is limited to this specific area. The issue of concurrency is complex. My colleagues and I have looked carefully at the amendment, and we feel that it clears up some of the areas of potential conflict. Therefore, we maintain that where there are circumstances which are easily identifiable now, with which the OFT should deal, they should be clearly identifiable in the Bill. Therefore I wish to test the opinion of the House on this amendment.
7.30 p.m.
On Question, Whether the said amendment (No. 37) shall be agreed to?
7.33 p.m.
The Deputy Speaker (Lord Ampthill): My Lords, Tellers for the Contents have not been appointed, pursuant to Standing Order No. 51. The Division therefore cannot take place and I declare that the Not-Contents have it.
Resolved in the negative, and amendment disagreed to accordingly.
Lord Kingsland moved Amendment No. 38:
The noble Lord said: My Lords, this is another amendment which deals with concurrency. It is also an aspect of concurrency which has been much worked-over in your Lordships' House. It refers to the circumstances in which a regulator who can apply either his powers under the relevant regulatory Act or his powers under the Competition Bill has the discretion to pick and choose between both those sets of powers.
The amendment seeks to provide that where a sectoral regulator considers that a matter is more properly the subject of the Bill rather than of his regulatory Act, in pursuing his objectives under the Bill he must use the powers and procedures set out in the Bill--and those powers and procedures alone.
If at some stage he takes the view that his initial decision was wrong, and that he should have pursued the matter under the relevant regulatory Act, he is entitled to switch to pursue matters under that Act; but in those circumstances he must abandon the use of the powers under the Bill and revert to the use of the powers under the Act. That will prevent the regulator in question switching between the two sets of powers.
In my submission, it is inconsistent with the Government's position--that the powers under the Bill are necessary to further the objectives of the Bill--to allow a regulator to use the powers under his Act to pursue the objectives of this Bill. It is in those circumstances and in that spirit that this amendment is tabled. I beg to move.
Lord Simon of Highbury: My Lords, in dealing with this amendment, I should like to speak also to government Amendments Nos. 57, 66 to 72 and 82 to 86. I should like to deal first with the government amendments and I hope that that will follow sequentially when I reflect on the intervention of the noble Lord, Lord Kingsland, on Amendment No. 38.
The amendments to which I am speaking remove the obligation on the regulator to take licence enforcement action where he is satisfied that it is more appropriate to deal with the matter under the prohibitions.
In Committee I said that an amendment moved by the noble Lord, Lord Kingsland, seemed to make a valid point about the interaction between Section 25 of the Electricity Act and the enforcement of the prohibitions. I promised to reflect on the issue raised in relation to all the utility statutes.
On Report, I said, at col. 495 of Hansard of 23rd February, that we had concluded that, in the light of that reflection, it would be right to bring forward government amendments in respect of each of the utility statutes. Amendments Nos. 66 to 72 make the substantive changes. Amendments Nos. 82 to 86 are consequential.
As for transparency, where a regulator is satisfied of the facts which displace his obligation to enforce licence obligations he is required to serve a notice on the licence holder and to publish a notice for the attention of those affected, informing them of that fact.
I am grateful to the noble Lord for raising that matter in Committee and on Report. I am also pleased to have been able to respond with amendments to deal with the problem that he identified.
The noble Lord, Lord Kingsland, spoke to Amendment No. 38. I suspect that that also takes in Amendment No. 57. Indeed, both amendments fall in the area we are now discussing. One purpose of the amendments is to remove any duty imposed on a regulator by virtue of a utility enactment to take enforcement action when he is exercising functions under the Bill. The government amendments would already have the effect of removing the duty to take licence enforcement action where the regulator is satisfied that the most appropriate way of proceeding is under this Bill.
The other purpose of the noble Lord's amendments appears to be to require a regulator to regard action under the Bill as the most appropriate way to proceed whenever something falls within the scope of the prohibitions, by implication even when it is not the most appropriate way to proceed. The term "appropriate" requires judgment. In this case, it rightly should be the regulator's judgment and not a requirement imposed on him just because a matter falls within the scope of the Chapter I or Chapter II prohibition. Moreover, in certain cases a regulator has a Community law obligation to enforce licence conditions, which the noble Lord's amendments might preclude.
I am therefore convinced that the amendments tabled by the Government provide the right approach to cover the direction of the discussion that we have been taking forward. In those circumstances, I urge the noble Lord to withdraw Amendment No. 38. I should point out again that I have also been speaking to Amendment No. 57 in the same light.
Lord Kingsland: My Lords, I should like, first, to acknowledge and thank the Minister for the amendments that he has tabled in response to a number of issues raised in Committee and on Report. In particular, I should like to thank him for tabling Amendment No. 66 which demonstrates a particularly constructive approach to the problem outlined.
However, I am disappointed by the Minister's response to Amendment No. 38, and a little surprised. I say that because the amendment does not really ask him to go much further than he has already gone. All it requires is that if a regulator considers that the Bill is the more appropriate approach for dealing with an issue, then he ought to be limited to using the powers under that Bill.
It flows from everything that the Government said about the philosophy that the objectives of the Bill, and the procedures laid down in it, are indivisible. Why, therefore, when the Minister comes to the issue of concurrency, does he abandon that indivisibility and give the regulator the option to choose a regulatory route to approach his obligations under the Bill?
The amendment would not tie the regulator down to pursing the matter under the Bill. Indeed, if a regulator at any stage thinks that a regulatory approach is better,
Of course, the exercise of discretionary powers inevitably injects an element of uncertainty into the mind of the "regulatee"; indeed, that is unavoidable. However, all things being equal, the Minister ought to be aiming for the maximum amount of certainty and predictability possible. In my view, Amendment No. 38 provides that, without in any way interfering with the discretion of the regulator to switch to the relevant regulatory Act if he changes his mind about the nature of the fundamental problem that he faces. Nevertheless, as the Minister does not appear to wish to speak again, I have no option but to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 55 [General restrictions on disclosure of information]:
Page 28, line 5, at end insert--
("( ) Where it appears to a regulator that a matter is--
(a) an agreement, decision or concerted practice of the kind mentioned in section 2(1); or
(b) conduct of the kind mentioned in section 18(1),
he shall regard the most appropriate way of proceeding in respect of that matter to be by exercising the functions assigned to him by subsection (2) and Schedule 10 and not by exercising any functions provided by or under a sectoral enactment or any licence issued under such an enactment.
( ) Where a regulator exercises any of the functions assigned to him by subsection (2) and Schedule 10 in respect of a matter, any duty imposed upon him by or under any provision of a sectoral enactment to take enforcement action in respect of that matter shall not apply.
( ) In this section "sectoral enactment" means, in relation to the relevant regulator under that enactment--
(a) the Telecommunications Act 1984;
(b) the Gas Act 1986;
(c) the Electricity Act 1989;
(d) the Water Industry Act 1991;
(e) the Railways Act 1993;
(f) the Electricity (Northern Ireland) Order 1992;
(g) the Gas (Northern Ireland) Order 1996.").
7.45 p.m.
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