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Baroness Byford: My Lords, in fairness, I must put the noble Lord right. I was indeed approached by the usual channels to consider taking the Bill in the order suggested. We have not got as far as that at the moment. I have the minute of the noble Lord, Lord Moran, in front of me and I refer it to the noble Lord, Lord Carter. It states that,

I do not believe that they have considered. When I saw that I read it through very carefully. As regards the correction as to clarity, yes, I was asked that we take these matters in the sequence that we have. The report of the Royal Society had not appeared and I was not expecting it to have any reference at all to scrapie and TSE, but it has. That is why we are having this short debate.

Lord Lucas: My Lords, that answers one of my questions. But it appears that this is another occasion when the usual channels appear to have forgotten that Back-Benchers exist. We are not asked whether we should have Statements taken in this House. There was a little debate about that earlier today. I find it particularly extraordinary when what is a truly Back-Bench amendment succeeds without whipping or support, as far as I am aware, from any of the Opposition Benches in this House and the originator

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of the amendment is not told, consulted or informed in any way of the Government's plans for responding to it as the reports appear.

We are looking at how this House should operate in the future and, as Back-Benchers, we need to have care for our rights and abilities to make a difference in this House. We need to make sure that the usual channels, which are useful on many occasions, pay attention to us. Perhaps the mechanisms are not there for doing so at the moment because we seem to be forgotten more often than should be the case. To that extent I unreservedly support the noble Countess, Lady Mar. I do not have any particular comment to make on the substance of the Motion. I shall listen to what the Minister has to say.

Lord Whitty: My Lords, despite the wide-ranging nature of this discussion, all we have before us today is the order in which we should consider the Bill. The order is to facilitate discussion in the sequence I have described and to which the noble Baroness Lady Byford, referred.

I apologise if there was any discourtesy to the noble Lord, Lord Moran. However, we used the normal procedure in order to discuss both the timing and the order. It may well be that the wider points raised by the noble Lord, Lord Lucas, can be taken up in a separate context. We certainly intended no departure from the normal procedure.

As regards justification for suggesting the order in this way, the words which the noble Countess, Lady Mar, read from the noble Lord, Lord Moran, related to dealing with scrapie because it was non-controversial. That was not the motivation although it was less controversial than other parts of the Bill. The reason was that the issues were not covered by the reports or the reports on the consultation.

Although the noble Baroness, Lady Byford, indicated that the terms of reference of the Royal Society report could have included TSE, it did not in fact include any substantive discussion of it principally because the focus was on List A diseases, as defined, which do not include TSEs. The only references to those in the report relate to information and not how to deal with them. Therefore, there is no implication for Part 2 of the Bill in the report of the Royal Society and none whatsoever as regards the National Audit Office report, which is being dealt with in the normal way in another place through the Public Accounts Committee. Some noble Lords will be aware that the Permanent Secretary of my department had a fairly lengthy and interesting session with the Select Committee on the report a few weeks ago.

As regards other issues, the noble Countess rather let the cat out of the bag by saying that the main motivation of the noble Lord, Lord Moran, was to dump the Bill. That may or may not be the case.

The Countess of Mar: My Lords, I do not believe that that was the view of the noble Lord, Lord Moran, but mine.

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Lord Whitty: My Lords, that is even clearer and I therefore apologise once again to the noble Lord, Lord Moran, in his absence. If the noble Countess wishes to make it clear, it is also necessary to make it clear to the House that that was not the purpose or content of the Motion passed by this House in March. That was to delay the Bill until we had received and considered the reports and the response to the consultation relating to parts of the Bill.

The Government have already considered them and the House has the opportunity to do so in the summer before we reach the relevant points. The scrapie provisions are not affected or any of the stipulations in the resolution passed in March which, as my noble friend Lord Carter said, was an extraordinary Motion in the first place. It would be even more extraordinary if we rejected a scheduling Motion today.

Others have queried why we should proceed so rapidly on the scrapie part of the Bill. It is a part of the Bill which is widely supported by the industry, which needs reassurance on some aspects of it. We are discussing the logistical aspects. The eradication of scrapie from the national herd will take several years, but virtually everybody in the sheep industry wishes to begin the process as rapidly as possible and therefore to get onto the statute book as rapidly as possible the legal powers to do that. That is why it is equally urgent that we proceed with the scrapie part of the Bill as the Government consider the provisions are needed as regards the foot and mouth disease. No doubt others will take a different view.

I shall be making a Statement in the House on the report of the Royal Society and on the Anderson report, due on Monday, after we have received it. Some of these matters can then be discussed more widely. But before the House today is a Motion which enables us to adopt a sensible timetable, but it is only about the order in which we take the Bill. I therefore hope that the House will accept the Motion and not take the unprecedented step of voting against it. Some of the substantive points which have been raised can be dealt with in the normal way in Committee in this House. I commend the Motion to the House.

On Question, Motion agreed to.

Enterprise Bill

5.7 p.m.

The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Sainsbury of Turville.)

On Question, Motion agreed to.

House in Committee accordingly.

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[The DEPUTY CHAIRMAN OF COMMITTEES (Baroness Fookes) in the Chair.]

Lord Kingsland moved Amendment No. 84:

    Before Clause 16, insert the following new clause—

In section 46(2) of the 1998 Act, there is inserted after paragraph (h)—
"(i) to issue a notice under section 26 requiring the production of specified documents or information;
(j) to investigate premises without a warrant under section 27;
(k) to investigate premises with a warrant under section 28;
(l) not to investigate a complaint under Chapter I or II;
(m) not to grant interim measures under section 35.""

The noble Lord said: This amendment concerns Section 46 of the Competition Act 1998. It seeks to insert some new paragraphs after paragraph (h). None of the measures stipulated in the amendment is capable of being appealed to the Competition Commission Appeal Tribunal which, as the Committee is aware, is to be re-named the Competition Appeal Tribunal under the Bill. Nevertheless, each of the additions has significant effects for the party concerned and can be challenged only by judicial review. The amendment is consistent with the Government's declared wish to have competition matters dealt with by bodies versed in competition law and practice. The decisions on the additions listed above should go to the CAT and not to the courts.

On the very day that the Bill was introduced in March 2002, an important decision was taken by the Competition Commission Appeal Tribunal in a case called Bettercare. The case concerned whether a complainant had a right to appeal against a rejection of a complaint by the OFT—a matter not listed in Section 46. The OFT argued that it had not taken a decision but had merely decided not to exercise its discretion to open proceedings on the grounds that the Competition Act did not apply to the party complained about. The party complained about was a local authority. The CAT nevertheless held that this was an appealable decision.

The situation now seems to be, therefore, that if the OFT rejects a complaint on substantive grounds its decision is appealable; but if it decides not to investigate on grounds of, say, lack of resources or lack of the importance of the subject matter, that would be challengeable in the High Court only by way of judicial review. That will plainly lead to confusion. It might not, in particular, be easy to determine what was the basis for rejection: indeed, the OFT might be encouraged to base all rejection letters on judicial review-type grounds which would not be conducive to good decision making or to transparency. Moreover, a complainant who brought his appeal in the "wrong" forum might find himself out of time because of the difference in limitation periods for the two procedures.

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There is absolutely no reason whatever not to provide that all competition-related decisions, including rejection of complaints, should be reviewable by the CAT and not by the ordinary courts. I beg to move.

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