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Lord Kingsland: My Lords, I warmly support this imaginative and constructive initiative by the noble and learned Lord, Lord Brightman. He has in effect already done the work for the Government. I earnestly hope that the Government will respond in a most positive way.
Lord Haskel: My Lords, the Government always have an open ear to suggestions which would make legislation easier to read and more user-friendly. We have taken advice from the appropriate authorities on whether we should include an index of defined expressions in the Competition Bill. The clear advice we have received is that it would not be appropriate to include such an index in the Bill.
However, in view of what the noble and learned Lord has said, perhaps we should ask the legal draftsman to read his remarks very carefully and to reconsider that advice. In view of that, perhaps the noble and learned Lord will withdraw his amendment.
Lord Brightman: My Lords, I am delighted to hear what the Government have said and I gratefully accept what is suggested. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 2 [Exclusions: Other Competition Scrutiny]:
Lord Simon of Highbury moved Amendment No. 48:
The noble Lord said: My Lords, I shall also speak to Amendments Nos. 49, 50 and 51.
I mentioned in Committee on 13th November that we should need to refine some of the provisions in Schedule 2. These amendments refine the provisions which deal with agreements relating to Channel 3 news provision and networking arrangements, which are subject to competition scrutiny under the Broadcasting Act. They also provide a power to exclude or modify provisions in the Bill in respect of producer responsibility schemes and certain agreements. At present, the Environment Act provides a power to make regulations which provide for competition scrutiny and for the RTPA to be excluded or modified in respect of producer responsibility schemes and certain agreements.
Amendments Nos. 48 and 49 are technical amendments. Amendments Nos. 50 and 51 are subsidiary and relevant to the same provisions. I beg to move.
On Question, amendment agreed to.
Lord Simon of Highbury moved Amendments Nos. 49 to 51:
Page 50, line 18, leave out from beginning to ("that") and insert ("and").
Page 50, line 36, at end insert ("and
expressions used in this section which are also used in Part I of the Competition Act 1998 are to be interpreted in the same way as for the purposes of that Part of that Act.").
Page 50, line 44, leave out from ("arrangements") to end of line 48 and insert ("to the extent to which they--
(a) are subject to Schedule 4 to the Broadcasting Act 1990 (competition references with respect to networking arrangements); or
(b) contain provisions which have been considered under that Schedule.
(2) The Independent Television Commission ("ITC") must publish a list of the networking arrangements which in their opinion are excluded from the Chapter I prohibition by virtue of sub-paragraph (1).
(3) The ITC must--
(a) consult the Director before publishing the list, and
(b) publish the list in such a way as they think most suitable for bringing it to the attention of persons who, in their opinion, would be affected by, or likely to have an interest in it.
(4) In this paragraph "networking arrangements" means--
(a) any arrangements entered into as mentioned in section 39(4) or (7)(b) of the Broadcasting Act 1990, or
(b) any agreements--
(i) which do not constitute arrangements of the kind mentioned in paragraph (a), but
(ii) which are made for the purpose mentioned in section 39(1) of that Act, or
(c) any modification of the arrangements or agreements mentioned in paragraph (a) or (b).").
Page 50, line 48, at end insert--
.--(1) The Environment Act 1995 is amended as follows.
(2) In section 94(1) (supplementary provisions about regulations imposing producer responsibility obligations on prescribed persons), after paragraph (o), insert--
"(oa) the exclusion or modification of any provision of Part I of the Competition Act 1998 in relation to exemption schemes or in relation to any agreement, decision or concerted practice at least one of the parties to which is an operator of an exemption scheme;".
(3) After section 94(6), insert--
"(6A) Expressions used in paragraph (oa) of subsection (1) above which are also used in Part I of the Competition Act 1998 are to be interpreted in the same way as for the purposes of that Part of that Act."
(4) After section 94, insert--
"Producer responsibility: competition matters.
94A.--(1) For the purposes of this section, the relevant paragraphs are paragraphs (n), (o), (oa) and (ya) of section 94(1) above.
(2) Regulations made by virtue of any of the relevant paragraphs may include transitional provision in respect of agreements or exemption schemes--
(a) in respect of which information has been required for the purposes of competition scrutiny under any regulation made by virtue of paragraph (ya);
(b) which are being, or have been, considered for the purposes of competition scrutiny under any regulation made by virtue of paragraph (n) or (ya); or
(c) in respect of which provisions of the Restrictive Trade Practices Acts 1976 and 1977 have been modified or excluded in accordance with any regulation made by virtue of paragraph (o).
(3) Subsections (2), (3), (5) to (7) and (10) of section 93 above do not apply to a statutory instrument which contains only regulations made by virtue of any of the relevant paragraphs or subsection (2) above.
(4) Such a statutory instrument shall be subject to annulment in pursuance of a resolution of either House of Parliament." ").
On Question, amendments agreed to.
Schedule 4 [Professional Rules]:
Lord Howie of Troon moved Amendment No. 52:
Page 58, leave out lines 10 to 13 and insert--
("17. The services of chartered engineers, incorporated engineers and engineering technicians.
17A. The services of persons practising or employed as consultants in the field of--").
The noble Lord said: My Lords, I am sorry to detain the House at this late hour, but this amendment, though short, is important. We discussed it previously on Report. Unfortunately, the amendment that I tabled then was imperfect--as is often the case with amendments that I table. Owing to its imperfection, it received a somewhat perfunctory reply. In fact, it received no reply at all--it was merely swatted to one side like an interfering fly. I later wrote to the Minister, suggesting a better way of dealing with this specific problem. He is therefore aware of what I am about to say--although I shall say it at greater length than I did in the letter.
The amendment that I proposed for this stage was changed by the Committee Clerks into the series of three amendments that appear on the Marshalled List. I shall speak to all three together. The effect that I had, and still have, in mind is to split paragraph 17 of Schedule 4 into two parts, so that it demonstrates clearly that engineering is a discrete discipline, quite separate from science, technology, architecture or any other discipline. The effect of these amendments would be to leave sub-paragraphs (a) and (b) of paragraph 17 under the general heading, Engineering, and the remaining sub-paragraph would come under the heading, Technology, making quite clear the distinction between these matters.
On Report, we were told that the headings in italics carried no weight, just as marginal notes, referred to by the noble and learned Lord, Lord Brightman, have no weight. That led me to two thoughts. If they have no weight, why are they there at all? Or, if they are there in order to help the reader, as the noble and learned Lord, Lord Brightman, suggested, they should be helpful rather than misleading.
As paragraph 17 presently stands, it is misleading. Under the general heading, Engineering, it includes a large number of matters which are clearly not engineering matters at all. I went into this point at some length on Report and shall not delay the House unduly, except to say that nobody with any respect for language would regard geology, agronomy, forestry, livestock rearing in particular, ecology, chemistry or biochemistry as engineering. They may well be described as technology, but there is no way in which they can be described as engineering. It is absurd so to describe them.
I have spent the 20 years that I have been in this place trying to get Whitehall to recognise engineering as a separate discipline. I have had modest success--but it has been extremely modest. I am hoping to add another modest success to my rather dismal record in this respect.
There is more to it than merely that. Sub-paragraphs (a) and (b) refer to engineering, but they contain a serious flaw. The Bill excludes professional people working under designated professional rules from some of the strictures of the Bill. In the case of engineering, the rules are those of the Engineering Council and the various institutions of engineering, of which there are a number--some may say an unreasonable number. It is possible to practise as a consultant and to do engineering work without being a member of any engineering institution or of the Engineering Council. Thus a person who was not working under the rules of a professional body would be excluded under the Bill as it stands. I cannot believe that that is what the Minister wishes to provide.
Let me illustrate the point by reference to the paragraph referring to architects. That merely says "architects", which is all right because architects are registered. Although one can do architectural work without being registered, as I have myself as a civil engineer, one cannot then describe oneself as an architect and therefore would not be subject to the exclusion in the Bill. Engineering does not have the advantage of registration. Therefore people who are not registered engineers, in the usual sense of the term, and are not subject to professional rules of any kind would be unreasonably excluded.
I tried earlier, and will try again, to show that paragraph 17 is flawed, though not fatally so, and can be remedied. I have suggested one means by which it can be improved. I sincerely hope that the Minister will pay attention to what I have said. I beg to move.
8.30 p.m.
Lord Haskel: My Lords, as I explained in Committee and on Report, the Government's intention in Schedule 4 is simply 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 1976. The present definition can be found there, and I am not aware that it has caused any problems since. As we wish to carry forward an exclusion, we have no wish to depart from the wording now used in Schedule 4.
The specified professional services are the ones for which, if there is a professional body which regulates the service or the persons providing or wishing to provide that service, that body may apply to the Secretary of State to have its professional rules designated and hence excluded from the Chapter I prohibition. This applies equally to engineers and engineering consultants. Therefore the purpose of the definitions is to define which professional bodies may--and by omission may not--have their professional rules designated. It is a matter of regulating professional bodies and their members. I should perhaps emphasise that it is only professional rules that we are talking about here. Other agreements between members of the relevant professions could not be excluded under the schedule.
The noble Lord is concerned that the definition does not match his own definition and that it includes some persons whom he would rather have included in a separate category. That can apply to all parts of Schedule 4.
If there are no such professional rules, there will be none to be designated and hence excluded under the Bill. As the only purpose of the clause is to list those professions which are presently excluded from the Restrictive Trade Practices Act 1976, it seems sensible to carry forward the wording of that Act. It may well be out of date, but it serves for the purpose of the Bill.
I know that the noble Lord is a champion of engineering and engineers and has spoken up for them many times in this House, but I do not believe that the Bill is a proper place for him to try to further the profession. In view of that, I hope that he will be able to withdraw his amendment.
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