Previous Section Back to Table of Contents Lords Hansard Home Page


The Deputy Chairman of Committees: In calling Amendment No. 173, I have to advise the Committee that if it is agreed to, I cannot call Amendment No. 174 due to pre-emption.

[Amendments Nos. 173 and 174 not moved.]

Clause 174 agreed to.

Clause 175 [Offences]:

[Amendment No. 175 not moved.]

Clause 175 agreed to.

Clauses 176 and 177 agreed to.

Clause 178 [Interpretation: Part 4]:

Lord Hunt of Wirral moved Amendment No. 176:


The noble Lord said: Amendment No. 176 would mean that the clause would read:


    "'business' includes a professional practice and includes any other undertaking which is carried on for gain or reward or which is an undertaking in the course of which goods or services are supplied otherwise than free of charge and includes a local authority or a public body".

I hope that the Minister will accept this amendment. I beg to move.

Lord Sainsbury of Turville: I begin by reminding noble Lords that the term "business", as defined in Clause 178, appears in Clause 126, subsections (2)(b) and (c), where the conduct of persons supplying goods or services in the course of business and the conduct of the customers of persons supplying goods or services in the course of business are part of the definition of "features" of a market which applies both in Part 4 and in relation to the making of super-complaints under

18 Jul 2002 : Column 1531

Clause 11. The definition of "business" in Clause 178 includes, but is not limited to, any undertaking which is carried on for gain or reward or which supplies goods or services otherwise than free of charge. That means that supply or acquisition of goods or services by local authorities or other public bodies on a commercial basis will be covered.

To the extent that the amendment seeks to clarify that the conduct of local authorities or public bodies can provide grounds for a market investigation where they are operating commercially, I have no quarrel with it. However, as drafted, the amendment does not fulfil that purpose: the point of the definition of "business" in Clause 178 is to clarify that certain types of activity count as business activity for the purposes of Clause 126; whereas the amendment refers to a particular kind of organisation, which may or may not be engaged in such activity. However, I am happy to take this away and to consider whether an amendment should be made.

Lord Hunt of Wirral: Obviously my feeling of inspiration was fully justified. I am grateful to the Minister for his response and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 178 agreed to.

Clauses 179 and 180 agreed to.

Schedule 11 [The Competition Commission]:

Lord Kingsland moved Amendment No. 177:


    Page 245, line 37, leave out "may" and insert "shall"

The noble Lord said: This is a probing amendment about the publication of information by the commission. Paragraph 7 of Schedule 11 states:


    "The Commission may publish advice and information in relation to any matter connected with the exercise of its functions".

That could be described as a fairly broad remit. Is the Minister prepared to indicate what kind of information is envisaged under this paragraph? Amendment No. 177 includes the expression, "shall". Clearly that would be too demanding and quite unnecessarily broad. But, equally, the discretion the commission has to publish is so wide under this paragraph that it gives no indication as to the type of information that the commission might have in mind. I am therefore probing to find out what we are likely to receive in our post boxes or our e-mails. I beg to move.

Lord Sainsbury of Turville: Amendment No. 177 provides that the Competition Commission "shall" publish advice and information on any matter connected with the exercise of its function. It is important to understand how the Bill understands the issue of publishing advice and information.

There are two clauses in the main body which deal with this. Clause 103 provides that the Competition Commission should prepare and publish general advice and information about the consideration by it of merger references and the way in which relevant

18 Jul 2002 : Column 1532

customer benefits may affect the taking of enforcement action in relation to such references. Clause 166 requires the Competition Commission to prepare and publish similar advice and information in respect of market investigation.

The intention of paragraph 7 of Schedule 11 is not to add a further requirement on the Competition Commission to publish advice and information. It is intended to allow the advice and information required by Clauses 103 and 166 to be published by the Council of the Competition Commission acting for the rest of the commission. The council is the board of the Competition Commission and is made up of the chairman, deputy chairman and secretary of the commission.

Although the new paragraph 7A refers to "Commission", the location of this provision within the text of Schedule 7 to the Competition Act 1998 means that this would be a council function. That is the primary purpose of new paragraph 7A, although it will also allow the Competition Commission to publish advice and information on other matters where it sees the need. It is not intended to create a wider obligation on the Competition Commission to publish advice and information in respect of everything the Competition Commission does.

We believe we have identified the most important areas for publishing advice and information in the clauses I mentioned. We are also confident that the Competition Commission will publish further advice and information on other areas but want the decision on what advice to publish and when to be a matter for the commission itself. We see no value in requiring the commission to publish advice on everything it does. Such a requirement would be unnecessary and unrealistic and I therefore ask the noble Lord to withdraw his amendment.

Lord Kingsland: I shall willingly withdraw the amendment because I accept that it would be wholly unrealistic. However, it has achieved a purpose this evening because it has elicited from the Minister a great deal of useful information about the expected approach of the commission to publication.

It would be helpful if it took an early opportunity to indicate, within the framework that the Minister has outlined, what specific areas of public communication it intends to engage in. As its experience develops, no doubt the pattern will change somewhat. It would be extremely helpful for the market to know what the commission has in mind initially. Apart from anything else, suggestions may be made to it about matters it might not have thought about which it would find acceptable and helpful both to its work and that of its customers, if I may refer to them in that very general way. The Minister very kindly nodded so I believe that I can leave it at that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 11 agreed to.

18 Jul 2002 : Column 1533

Clause 181 [Annual report of Commission]:

[Amendment No. 177A not moved.]

Clause 181 agreed to.

Clause 182 [Commission rules of procedure]:

Lord Hunt of Wirral moved Amendment No. 178:


    Page 133, line 2, leave out "such other persons as he considers appropriate" and insert "other interested parties or their representatives"


    The noble Lord said: This amendment seeks to restrict what appears to be a completely unfettered power for the chairman to consult anyone he considers appropriate. At the moment Clause 182(4) provides that: "The chairman must consult the members of the Commission . . . before making rules under this paragraph".

It adds the words,


    "such other persons as he considers appropriate".

This amendment deletes those words and inserts,


    "other interested parties or their representatives"

thus at least giving some credibility to the power to consult by making sure that it is only to other interested parties or their representatives. I very much hope that the Minister will accept this amendment. I beg to move.

Lord Sainsbury of Turville: This amendment is concerned with Clause 182 of the Bill, which requires the chairman of the Competition Commission to make rules of procedure to regulate the conduct of merger and market reference groups. Before making rules the Bill requires the chairman to consult the other members of the commission and other persons as he considers appropriate.

The amendment would reduce the chairman's discretion about who he chooses to consult. I do not believe that there can be any disagreement with the proposition that there should be open consultation on the rules of procedure. The issue is how this is best expressed in statutory terms. We have a choice between what I would characterise as a flexible consultation provision which relies on the chairman's common sense and a more prescriptive requirement which will not carry us any further forward in practice and which may have an unintended constraining effect.

For example, I am not clear who we mean by "interested parties" in this context. Is it all companies which have been involved in merger or monopoly references in the past? Does it extend to those who might be involved in mergers or market investigations in the future? If it refers to just business parties it is rather limiting. What about consumer groups and others?

The consultation provision which we have in the Bill avoids these definition difficulties. I do not believe that there is any need to be more prescriptive. We can leave it to the common sense of the chairman. On that basis I ask the noble Lord to withdraw his amendment.


Next Section Back to Table of Contents Lords Hansard Home Page