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Lord Howie of Troon: My Lords, that is the miserable kind of reply that I expected. I have not heard such nonsense since my noble friend replied to me at Report stage. It must be possible for him, even so late in the evening, to grasp the simple fact that there are groups of persons included in paragraph 17 who are not engineers at all, who are livestock stockbreeders and agronomists, for goodness sake! I greatly admire those people, but they are not engineers. It would be a simple matter for my noble friend to do what I asked.
I know there is a problem, which I have come across in earlier legislation. Someone, beavering through previous legislation, found this part, took his scissors, cut it out and pasted it into the draft of the Bill. It is done all the time; but it should be done with thought. To change this provision and improve the Bill would be
a very simple matter. I do not imagine that there is any way of knocking sense into my noble friend's head, other than with a sharp instrument. I do not have one of those, and it would be impolite of me, in any case, because he and I have been friends for many years. He really must get a grip of this. I can assure him that there is every likelihood that the matter will be raised in another place.Perhaps it would be a good idea if he were to take up the suggestion I made in the letter to which I referred that we should have a brief meeting, perhaps over a glass or two of Scotch, and sort the matter out. It is not difficult. That would not only redound to my noble friend's reputation but please something like a quarter of a million engineers. Under the paragraph as it stands, it is possible to act as a consultant without being subject to the rules, and that is a flaw. In view of the extremely unsatisfactory reply, the kind of reply that I am used to, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 53 and 54 not moved.]
Lord Simon of Highbury moved Amendment No. 56:
The noble Lord said: My Lords, in moving Amendment No. 56, I shall speak also to Amendments Nos. 60 to 65.
At Report, the noble Lords, Lord St. John of Bletso and Lord Kingsland, and the noble Viscount, Lord Trenchard, spoke to amendments concerning the duties of regulators under their utility statutes. I was grateful to the noble Lords for raising the matter.
In response I said that the position that we wished to achieve was that a regulator applying the prohibitions was to do so on precisely the same legal basis as the DGFT; that we wished to make that clear on the face of the Bill, and that we would bring forward amendments in order to achieve it (23rd February; col. 476). These amendments fulfil that commitment.
The amendments provide that the statutory duties contained in utility legislation do not apply in relation to the regulators' concurrent functions under the Bill. The amendments also make clear that, when exercising a concurrent function, a regulator may have regard to the matters which are the subject of the statutory duties if the DGFT could have regard to those matters if he were exercising that function. I said at Report that we were concerned that simply to disapply the duties might lead to uncertainty as to the effect of the "disapplication". The amendments put the effect beyond doubt.
Two of the amendments also contain a further clarificatory provision to ensure that, in dealing with the last point, we do not raise doubts about the effect of disapplication provisions already in the legislation. This further clarification is in Amendment No. 61 relating to the Electricity Act 1989, and Amendment No. 64 relating to the Electricity (Northern Ireland) Order 1992. It is possible that we may wish to provide similar clarification in relation to the Telecommunications Act 1984 and the Water Industry Act 1991. If so, amendments would need to be brought forward in another place. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 57 to 59 not moved.]
Lord Haskel moved Amendments Nos. 60 to 72:
The noble Lord said: My Lords, with the leave of the House, I shall move Amendments Nos. 66 to 72 en bloc. I beg to move.
On Question, amendments agreed to.
Schedule 11 [Interpretation of Section 55]:
Page 76, leave out lines 16 to 19 and insert--
(""(3B) Subsections (1) and (2) above do not apply in relation to anything done by the Director in the exercise of functions assigned to him by section 50(3) below ("Competition Act functions").
(3C) The Director may nevertheless, when exercising any Competition Act function, have regard to any matter in respect of which a duty is imposed by subsection (1) or (2) above, if it is a matter to which the Director General of Fair Trading could have regard when exercising that function."").
Page 77, leave out lines 3 to 6 and insert--
(""(3A) Subsections (1) to (3) above and section 4A below do not apply in relation to anything done by the Director in the exercise of functions assigned to him by section 36A below ("Competition Act functions").
(3B) The Director may nevertheless, when exercising any Competition Act function, have regard to any matter in respect of which a duty is imposed by any of subsections (1) to (3) above or section 4A below, if it is a matter to which the Director General of Fair Trading could have regard when exercising that function."").
Page 77, leave out lines 44 to 47 and insert--
(""(6A) Subsections (1) to (5) above do not apply in relation to anything done by the Director in the exercise of functions assigned to him by section 43(3) below ("Competition Act functions").
(6B) The Director may nevertheless, when exercising any Competition Act function, have regard to any matter in respect of which a duty is imposed by any of subsections (1) to (5) above ("a general matter"), if it is a matter to which the Director General of Fair Trading could have regard when exercising that function; but that is not to be taken as implying that, in the exercise of any function mentioned in subsection (6) above, regard may not be had to any general matter."").
Page 78, leave out lines 31 to 34 and insert--
(""(6A) Subsections (2) to (4) above do not apply in relation to anything done by the Director in the exercise of functions assigned to him by section 31(3) below ("Competition Act functions").
(6B) The Director may nevertheless, when exercising any Competition Act function, have regard to any matter in respect of which a duty is imposed by any of subsections (2) to (4) above, if it is a matter to which the Director General of Fair Trading could have regard when exercising that function."").
Page 79, leave out lines 22 to 25 and insert--
(""(7A) Subsections (1) to (6) above do not apply in relation to anything done by the Regulator in the exercise of functions assigned to him by section 67(3) below ("Competition Act functions").
(7B) The Regulator may nevertheless, when exercising any Competition Act function, have regard to any matter in respect of which a duty is imposed by any of subsections (1) to (6) above, if it is a matter to which the Director General of Fair Trading could have regard when exercising that function."").
Page 80, leave out lines 11 to 14 and insert--
(""(3) Paragraph (1) does not apply in relation to anything done by the Director in the exercise of functions assigned to him by Article 46(3) ("Competition Act functions").
(4) The Director may nevertheless, when exercising any Competition Act function, have regard to any matter in respect of which a duty is imposed by paragraph (1) ("a general matter"), if it is a matter to which the Director General of Fair Trading could have regard when exercising that function; but that is not to be taken as implying that, in the exercise of any function mentioned in Article 4(7) or paragraph (2), regard may not be had to any general matter."").
Page 80, leave out lines 45 to 48 and insert--
(""(3A) Paragraphs (2) to (4) do not apply in relation to anything done by the Director in the exercise of functions assigned to him by Article 23(3) ("Competition Act functions").
(3B) The Director may nevertheless, when exercising any Competition Act function, have regard to any matter in respect of which a duty is imposed by any of paragraphs (2) to (4), if it is a matter to which the Director General of Fair Trading could have regard when exercising that function."").
Page 82, line 16, at end insert--
("( ) In section 16 (securing compliance with licence conditions), in subsection (5), after paragraph (a), omit "or" and after paragraph (b), insert "or
(c) that the most appropriate way of proceeding is under the Competition Act 1998."").
Page 83, line 16, at end insert--
("( ) In section 28 (orders for securing compliance with certain provisions), in subsection (5), after paragraph (aa), omit "or" and after paragraph (b), insert "or
(c) that the most appropriate way of proceeding is under the Competition Act 1998."").
Page 84, line 23, at end insert--
("( ) In section 25 (orders for securing compliance), in subsection (5), after paragraph (b), omit "or" and after paragraph (c), insert "or
(d) that the most appropriate way of proceeding is under the Competition Act 1998."").
Page 85, line 35, at end insert--
("( ) In section 19 (exceptions to duty to enforce), after subsection (1), insert--
"(1A) The Director shall not be required to make an enforcement order, or to confirm a provisional enforcement order, if he is satisfied that the most appropriate way of proceeding is under the Competition Act 1998."
( ) In section 19(3), after "subsection (1) above", insert "or, in the case of the Director, is satisfied as mentioned in subsection (1A) above,".").
Page 87, line 14, at end insert--
("( ) In section 55 (orders for securing compliance), after subsection (5), insert--
"(5A) The Regulator shall not make a final order, or make or confirm a provisional order, in relation to a licence holder or person under closure restrictions if he is satisfied that the most appropriate way of proceeding is under the Competition Act 1998."
( ) In section 55--
(a) in subsection (6), after "subsection (5)" insert "or (5A)";
(b) in subsection (11), for "subsection (10)" substitute "subsections (5A) and (10)".").
Page 88, line 30, at end insert--
("( ) In Article 28 (orders for securing compliance), in paragraph (5), after sub-paragraph (b), omit "or" and after sub-paragraph (c), insert "or
(d) that the most appropriate way of proceeding is under the Competition Act 1998."").
Page 89, line 31, at end insert--
("( ) In Article 19 (orders for securing compliance), in paragraph (5), after sub-paragraph (b), omit "or" and after sub-paragraph (c), insert "or
(d) that the most appropriate way of proceeding is under the Competition Act 1998."").
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