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Lord Fraser of Carmyllie: My Lords, ordinarily the Opposition grumble if the approach taken is one of secondary rather than primary legislation. However, I believe that on this occasion there is sound reason underlying the thinking of the Government in allowing for much that has to be filled in to be done by way of secondary legislation. There must also be some force in what the Minister has said about drawing the provisions into line with what may emerge in a European context. The last thing we want is for British business to be required to observe two separate sets of rules. My only grumble is that, while this is a very reasonable approach to take, had it not been for the hesitancy of the previous President of the Board of Trade this is a conclusion to which the noble Lord would have come many months ago. We might have saved a good deal of time and effort with the matter ping-ponging around this Chamber or between this Chamber and another.
On Question, Motion agreed to.
35
Clause 54, page 28, line 2, leave out ("exercised") and insert ("exercisable").
Lord Simon of Highbury: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 35. It is convenient to speak at the same time to Amendments Nos. 36, 81 to 89, 108, 110 to 113, and 115 and 116. These amendments enable the regulators to co-ordinate their activities under the Bill in a more effective manner. On a number of occasions during the passage of the Bill through this House, noble Lords raised matters which illustrated rigidities within the utility statute provisions as they would apply to the exercise of concurrent functions under the Bill. I said that the Government would reflect on those rigidities and whether a change was needed. These amendments are the result of that reflection and also respond to points made in Committee in another place. They disapply the present inflexible utility statute provisions from the exercise of Bill functions and provide a more flexible regulation-making power instead.
Moved, That the House do agree with the Commons in their Amendment No. 35.--(Lord Simon of Highbury.)
Lord Kingsland: My Lords, it appears that, while this Bill was passing through another place, the Secretary of State acquired, almost in a fit of absent-mindedness, the power to make regulations
Lord Simon of Highbury: My Lords, in arriving at a flexible solution, we shall need to consult very closely on how regulations are made. I very much hope that, as the regulation-making process takes place, the problems to which the noble Lord refers will be resolved.
On Question, Motion agreed to.
36
Page 28, line 4, at end insert--
("(4) The Secretary of State may make regulations for the purpose of co-ordinating the performance of functions under this Part ("Part I functions") which are exercisable concurrently by two or more competent persons as a result of any provision made by Part II or III of Schedule 10.
(5) The regulations may, in particular, make provision--
(a) as to the procedure to be followed by competent persons when determining who is to exercise Part I functions in a particular case;
(b) as to the steps which must be taken before a competent person exercises, in a particular case, such Part I functions as may be prescribed;
(c) as to the procedure for determining, in a particular case, questions arising as to which competent person is to exercise Part I functions in respect of the case;
(d) for Part I functions in a particular case to be exercised jointly--
(i) by the Director and one or more regulators, or
(ii) by two or more regulators,
and as to the procedure to be followed in such cases;
(e) as to the circumstances in which the exercise by a competent person of such Part I functions as may be prescribed is to preclude the exercise of such functions by another such person;
(f) for cases in respect of which Part I functions are being, or have been, exercised by a competent person to be transferred to another such person;
(g) for the person ("A") exercising Part I functions in a particular case--
(i) to appoint another competent person ("B") to exercise Part I functions on A's behalf in relation to the case; or
(ii) to appoint officers of B (with B's consent) to act as officers of A in relation to the case;
(h) for notification as to who is exercising Part I functions in respect of a particular case.
(6) Provision made by virtue of subsection (5)(c) may provide for questions to be referred to and determined by the Secretary of State or by such other person as may be prescribed.
(7) "Competent person" means the Director or any of the regulators.").
37
Clause 59, page 31, line 17, at end insert--
Lord Simon of Highbury: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 36 and 37.
Moved, That the House do agree with the Commons in their Amendments Nos. 36 and 37.--(Lord Simon of Highbury.)
On Question, Motion agreed to.
("( ) The fact that to a limited extent the Chapter I prohibition does not apply to an agreement, because of an exclusion provided by or under this Part or any other enactment, does not require those provisions of the agreement to which the exclusion relates to be disregarded when considering whether the agreement infringes the prohibition for other reasons.").
38
Clause 60, page 32, line 2, after ("to") insert ("--
Lord Simon of Highbury: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 38. In moving this amendment I should like to speak also to Amendment No. 39. The Bill as drafted is designed to confer rights for persons to take action directly in the UK courts in respect of breach of the prohibitions. We believe that such rights of action have an important role to play in the enforcement of the prohibitions. We wish to ensure that the extent of the right of action for breach of the UK prohibitions is the same as for breach of Articles 85 and 86. Rights of action for breach of Articles 85 and 86 have been clearly held to exist by the UK courts. However, Community law is still in the process of development, for example, in terms of the class of persons who are able to claim such rights.
We want to ensure that our courts can deal with third party rights of action for breach of the domestic provisions as they evolve in the context of Articles 85 and 86. The amendments confirm this. As I said at Third Reading:
Moved, That the House do agree with the Commons in their Amendment No. 38.--(Lord Simon of Highbury.)
Lord Kingsland: My Lords, am I right in thinking that the amendments to which the Minister has spoken relate to Clause 60 of the Bill? Before I turn to the two questions that I wish to put to the Minister, I should like to make a general reflection on his approach to Clause 60. This clause caused us a good deal of heart-searching as well as mind-stretching during Committee and Report stages. There are a number of expressions in Clause 60 with which all your Lordships find great difficulty. The Minister will recall that, at the time, the noble and learned Lord, Lord Brightman, suggested to him that this was a Bill which pre-eminently should have an index of defined expressions. Noble Lords will have noted that in the course of this Session of Parliament no
Many noble Lords remain puzzled as to why it should be an appropriate approach in those Bills but not with regard to this Bill. When he was at the Bar, the noble and learned Lord, Lord Brightman, was regarded as the greatest draftsman of his generation. The Minister will recall that he actually did the Minister's work for him. I believe that in the application of Clause 60, it would have been of benefit to this House.
I have two questions on Clause 60. First, does the clause apply to Part I of the Act in its entirety? Secondly, on the definition of compatibility, am I right to conclude that compatibility here means that the jurisprudence of the European Court of Justice will prevail in all circumstances except those in which the court, having striven to make them prevail, finds that, in that particular set of circumstances, they cannot?
Lord Simon of Highbury: My Lords, perhaps I may briefly reflect on the input into the debate of the noble and learned Lord, Lord Brightman. We discussed it closely. The decision was not to provide the index here. That issue has been well discussed and well argued in this case. However, as noble Lords know, many Bills do not include indexes. The decision was that there would not be an index in this Bill.
The answer to the first question as to whether it applies to Part I in the entirety is yes. On compatibility, we are satisfied that the drafting of Clause 60 accurately expresses the concept that Community jurisprudence is to be followed unless the court is driven to some different interpretation by some provision in that part of the Bill. In all other respects, Part I is not to be interpreted as an ordinary statute. For example, "products" is to be read as including services. An "effect on competition" is to be read as meaning an appreciable effect. That is not how those terms would be interpreted if used in an ordinary UK statute. Interpretation of the Bill is not a two stage process. One does not construe the prohibitions and then compare them with Community jurisprudence. One construes them from the outset on the basis of Clause 60.
On Question, Motion agreed to.
(a)").
"We would not want a situation where the extent of rights of private action depended on whether the agreement affected trade between member states, often a difficult line to draw".--[Official Report, 5/3/98; col. 1325.]
7.30 p.m.
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