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Lord Borrie: My noble friend Lord Brennan has made a very apt comment. The idea—

Lord Kingsland: I thank the noble Lord for giving way, as he always does. I think I made it clear that this is intended to be a probing amendment to tease out the requirement for some provision on the face of the Bill for de-designation. I entirely accept that it is at the harsh end of the scale and is not something that I myself should necessarily want to see on the face of the Bill.

Lord Borrie: I am delighted to hear what the noble Lord has said. The idea of penalising the body because it has made more than one complaint which is not successful seems to be just one way of knocking on the head the whole process of super-complaints and designated bodies. It seems as though those who drafted Amendment No. 50 have had second thoughts halfway through. Instead of saying that the Secretary of State "shall" revoke the entitlement of the consumer body to make a complaint, the words used are, "shall consider revoking". So it does not get you anywhere at all. On the basis that this is entirely a probing amendment, I think that there is very little to be said for it.

Lord Sainsbury of Turville: I am glad that the noble Lord, Lord Kingsland, slightly withdrew his position on this. "Two strikes and you are out" is probably not the right approach to consumer organisations in this case.

Lord Kingsland: I apologise for intervening. I do not think it can be said that I "slightly" withdrew it. I think I made it absolutely clear that it was a probing amendment, and it was on that basis that I hoped the

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noble Lord would respond. I quite take the point that "two strikes and you are out" would be unacceptably harsh in these circumstances.

Lord Sainsbury of Turville: I take the point. Perhaps I may deal with the generality of the amendments. They would make it a requirement for the Secretary of State to review the status of designated super-complainants at least every 12 months, and to review the status of consumer bodies that make unsuccessful complaints.

Essentially, the amendments are unnecessary. There will already be proper safeguards in place to ensure that bodies designated as super-complainants act properly. We have already considered those. In order to be designated in the first place, bodies will have to meet criteria that the Secretary of State will publish, which will be fully consulted on. If a body at any time acts in such a way that it no longer meets the criteria, the Secretary of State will be able to revoke the designation. That will ensure that there is an ongoing review of the way in which the super-complaints procedure is working and will enable the Secretary of State to take quicker action in the event of a super-complainant breaching the criteria than might be the case if she had to wait for the next annual review.

Also, a legal requirement for an annual or more frequent review would introduce an unnecessary administrative burden on the Government and consumer bodies and would be extremely bureaucratic. We are clear that bodies that abuse and cease to meet the criteria will have their designation revoked. On that basis, I hope that noble Lords will be reassured and will not press their amendments.

Lord Kingsland: It may be the lateness of the hour, but I cannot put my finger on exactly where the power to revoke the designation is contained. It may well be there. Can the Minister point out where it is?

Lord Sainsbury of Turville: I believe that it would be an implied power to amend the order under the Interpretation Act. That would allow the Secretary of State to de-designate or revoke the designation.

Lord Kingsland: I am most grateful to the noble Lord for his explanation. I should like to hear that argument developed on the clause. Would it not be prudent in any case for the Minister to have an express power to de-designate? That would not undermine the philosophy of Clause 11, but would provide a highly desirable balance, in my submission. Perhaps the Minister would be good enough to consider that over the summer.

Lord Sainsbury of Turville: I should be happy to take that point away and consider it. If there is any doubt about the Secretary of State's powers to do that, we shall come back with amendments to take care of that point.

Lord Sharman: Having heard the Minister's response, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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[Amendments Nos. 50 to 53 not moved.]

On Question, Whether Clause 11 shall stand part of the Bill?

Lord Sharman: Members of the Committee may not be aware that my noble friend Lord Phillips has been ill of late and has already exceeded his permitted stay in the House today. With regard to his notification that he wished to oppose the Question that Clause 11 stand part of the Bill, he has asked me to say that, having heard the Minister's response to a number of the amendments on the clause, he is now satisfied that the consumer bodies are to be designated objectively. He therefore withdraws his objection to the clause.

Clause 11 agreed to.

Clause 12 [The Competition Appeal Tribunal]:

Lord Kingsland moved Amendment No. 54:


    Page 5, line 38, leave out "Secretary of State" and insert "Lord Chancellor"

The noble Lord said: The aim of Amendment No. 54 and the consequential Amendment No. 55 is to question whether it is appropriate for the Secretary of State for Trade and Industry to select the panel of tribunal members other than the chairmen. It is not clear what qualifications the Minister is expecting other members of the tribunal to have. However, it is undesirable that a tribunal which is intended to form a single unit, although with clearly more than one member sitting on it, should owe its legitimacy to two separate Secretaries of State. There will be the danger—not the certainty, but the danger—of a lack of coherence. I beg to move.

10.15 p.m.

Lord Borrie: I am rather surprised by this amendment. I believe that it is most appropriate for the Lord Chancellor to appoint the president and the chairman because they are lawyers, whose legal qualification, from judge downwards, is specified in the schedule to the legislation on the composition of appeals tribunals. Conversely, one would not expect the other members to be lawyers. One would expect them to be businessmen or from other walks of life and to be representative in the manner of other tribunals such as employment tribunals. The chairmen of other tribunals are often very well qualified lawyers, whereas the other members are not.

It is much more appropriate that the Secretary of State—presumably the Secretary of State for Trade and Industry—should select the panel from which the other panel members are drawn. The Secretary of State has his or her hands on the world of business, commerce and consumer organisations. I see no difficulty in distinguishing the person who appoints the president and the chairman from the person who appoints the other members.

Lord Brennan: At Second Reading, I think that I was the only Member of your Lordships' House to speak about this clause on the constitution and functioning of the competition appeal tribunal. The emphasis with which I sought to endow it was flexibility and

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informality. The flexibility will come from a broad spread of expertise among those who constitute the tribunal. I entirely agree with my noble friend Lord Borrie on that point.

As I said at Second Reading, I think that the informality is essential to the successful functioning of this tribunal. It should not be converted into yet another arm of the High Court. Rather, it should be an adjunct to the competitive world in which problems are quickly analysed and efficiently solved. This combination of appointment of judicial chairmen by the Lord Chancellor and the expertise of members appointed by the Secretary of State is a happy compromise.

Lord Kingsland: I thank the noble Lord, Lord Brennan, for his intervention. As I understand it, the reason for having members of the tribunal in addition to lawyers is not the desirability of informality but the need for expertise in matters other than the law. As I understand it, the current trend in competition cases is towards much greater involvement in the complex economic analysis of markets than was the case 10 or 20 years ago. It is therefore highly desirable that professional economists play a bigger part in the jurisprudential process.

So I can quite see why it is desirable to have other experts. However, it does not necessarily follow that the process should be more informal. As the noble Lord, Lord Brennan, is well aware, the High Court can sometimes be extremely informal. In some circumstances, appearing before some judges can be more informal than appearing before the competition tribunal. Informality in itself is not a necessary ingredient or even a particularly desirable component.

Lord Brennan: I hope that the noble Lord was not assuming, when I used the word "informality", such a superficial understanding of the word as he implied. I meant to suggest—I hope that this was clear—that expertise by lay members who know what they are talking about will enable the entire tribunal, including the chairman, to reach a much more informal solution to a problem, which will properly emerge from their expertise rather than the chairman's legal experience.


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