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Lord McIntosh of Haringey: The amendment would add to the list of decisions by the Office of Fair Trading that could be appealed to the competition appeal tribunal under the Competition Act 1998. I think that the reference in the amendment should be to Section 46(3) and not to Section 46(2). But that is of no matter.

Section 46(3) of that Act lists a number of decisions taken by the Office of Fair Trading that can be the subject of a full appeal to the tribunal. Further decisions of the OFT may be added by regulations under Section 46(3), and, in the case of third party appeals, Section 47(1). With one exception, we do not propose to add any new category of appealable decisions.

The exception is the category covered by paragraph (m), which the amendment proposes to add. I agree with the noble Lord, Lord Kingsland, that decisions not to grant interim measures should be appealable under Section 46, or, as I think is more likely, by third parties under Section 47. We stated our intention to implement this change in the July White Paper. As the Minister said in another place, we will be bringing forward the relevant secondary legislation as soon as is practicable. But it is unnecessary to make the amendment on the face of the Bill.

Having said that, I am not minded to take action on the other proposals in the amendment. The list of appealable decisions in Section 46(3) consists of substantive decisions by the OFT requiring an analysis of the merits of the case, and with only one exception taken at the conclusion of a procedure or investigation. The sole exception is the current right to appeal against interim measures taken under Section 35, which we are prepared to extend by order to include decisions not to grant interim measures.

We do not think it appropriate or necessary to provide for a full right of appeal on any intermediate, investigatory step in the OFT's proceedings. Parties are not without an avenue—as the noble Lord, Lord Kingsland, has reminded us—of judicial redress in any of the circumstances stipulated in the amendment. The option of applying for judicial review in the High Court will always be available. In that case the court will have full powers to impose remedies such as injunctions.

The noble Lord, Lord Kingsland, referred to the Bettercare case. Section 42(3) is clear that decisions as to whether the Chapter I or Chapter II prohibitions have been infringed can be appealed to the competition appeal tribunal. That includes decisions that a prohibition has not been breached. The Bettercare case establishes that the Director-General of Fair Trading may have made a decision that the prohibition has not been infringed, even where the position has not been taken at the end of a full administrative procedure and is not formally entitled

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a decision. It is sufficient if the DGFT had in substance made the determination of the issue—for instance, in the course of correspondence with the complainant—rejecting a complaint.

This is a substantive decision. It can be appealed to the tribunal. I hope that deals with the concern expressed by the noble Lord, Lord Kingsland. It was always the intention behind Section 46(3). My noble friend Lord Simon of Highbury during the debate on the 1998 Competition Bill said that it was our intention that substantive decisions by the director should be appealable to the Competition Commission. With those two, I hope, convincing points, I hope that the amendment will not be pursued.

5.15 p.m.

Lord Kingsland: I am grateful to the noble Lord for his full reply. He will not be surprised to hear that I am disappointed by it. I shall certainly return to the matter on Report. He is quite right about the subsection designation. The amendment should have referred to Section 46(3). I apologise to the Committee for that.

The Bettercare case is a good example of the illustration I gave about the OFT being tempted to cast its decision in terms of reasons which fall within the judicial review, rather than the appeal category. I think in this case of paragraph (l) of my amendment.

Judicial review in competition cases is hardly a remedy at all. As the noble Lord is well aware—if for no other reason than because of his experience with the Financial Services Bill—it is not normal in judicial review cases for judges to permit either cross-examination or discovery of documents. In those circumstances, it would be extremely difficult for a complainant before a judge in the Administrative Court to get anywhere with judicial review proceedings in relation to that matter. For those reasons, I shall be returning to the matter on Report. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 16 agreed to.

Lord Razzall moved Amendment No. 85:

    After Clause 16, insert the following new clause—

(1) The Lord Chancellor and the Secretary of State may together make regulations—
(a) empowering the courts to transfer to the Tribunal for determination by it any issue arising in any civil proceedings the determination of which depends on whether provisions of Chapter I or II of the 1998 Act or of Article 81 or 82 of the Treaty have been infringed where, in the opinion of the court making the transfer, the transfer would be conducive to the efficient conduct of the proceedings;
(b) making any rules that the Lord Chancellor and the Secretary of State may deem to be appropriate as ancillary to the power to make such transfers or to be reasonably required in connection therewith and in particular, but without prejudice to the generality of the foregoing, to the effect that—

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(i) on making such a transfer, the court making the transfer may state facts that the Tribunal shall then treat as established for the purposes of determining the issues transferred to it;
(ii) after having made its determination, the Tribunal shall remit the matter to the court that made the transfer to it, declaring the determination of that issue by the Tribunal, which, subject to any clarification or amplification by the Tribunal of its determination that may be requested by the court that made the transfer, shall then be treated as a determination of that issue by that court;
(iii) enabling courts that have made, or have in contemplation the making of, such transfers and the Tribunal to co-operate together in any way that they deem to be appropriate to enable issues arising in the proceedings before them to be determined as efficiently as possible.
(2) The Lord Chancellor may appoint as President and as chairman of the Tribunal judges of any of the courts provided that, before appointing a judge of the Court of Session or sheriff courts under this subsection, the Lord Chancellor shall first consult the Lord President of the Court of Session.
(3) In this section references to "the courts" are to the High Court of Justice and the county courts in England and Wales and Northern Ireland and the Court of Session and the sheriff courts in Scotland.
(4) The power to make regulations under this section is exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

The noble Lord said: Amendment No. 85 seeks to test the Government's intent on one or two quite complicated issues that relate to the functions of the competition appeal tribunal and the function of the courts. I am grateful for the representations that have been made to me in this respect by a number of practitioners in the competition law area.

The concern which the amendment seeks to remedy is that the Bill, if passed in its current form, would be in danger of getting the competition appeal tribunal to perform functions that it is not eminently qualified to deal with and getting the High Court to perform functions that it is not properly qualified to deal with. That is the substance of the amendment. It is designed to give the Government power to bring in regulations, on which there will need to be extensive consultations, to attempt to ensure that the right functions can be placed with the right bodies.

The background is that, for the first time, the Bill contemplates that where there are breaches of regulations and laws regarding competition legislation the power is given for private actions to be brought. We on these Benches certainly welcome that.

But the question is whether what was Clause 16 and is now Clause 17 appropriately assigns the power to make decisions on damages to the tribunal. In our judicial structure, the body that is eminently qualified to deal with questions of damages is the High Court. One of the underlying principles of the amendment is that the High Court, rather than the tribunal, should deal with damages.

Conversely, under the Bill, in many cases the competition appeal tribunal will not be assigned to deal with what it will be eminently qualified to deal: significant issues involving the interplay between the law and the economics of a case. High Court judges are

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not usually qualified to make such determinations. The amendment is intended to ensure that regulations can be introduced by the Government and that the competition appeal tribunal will deal with the matters with which it is eminently qualified to deal—complicated factual economic issues, for example, determining whether the exemptions in Article 81(3) apply.

Such issues have been increasingly determined in Europe, but because of the way in which European law is beginning to develop they will soon return to be matters to be determined by domestic tribunals or courts. Such issues should be determined by the tribunal. Conversely, the High Court is the appropriate place to determine issues of damages. That is the purpose of the amendment. I beg to move.

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